Introduction
In the concluding days of its recently completed Term, in the midst of headline-grabbing decisions about presidential immunity,1 gun rights,2 and abortion,3 the Supreme Court rendered a momentous decision overruling the Chevron doctrine. The decision in Loper Bright Enterprises v. Raimondo4 was not a surprise. After treating the Chevron doctrine as a settled principle of administrative law for more than three decades, the Court stopped applying it in 2016.5 Several Justices authored individual opinions urging that it was unconstitutional, violated the Administrative Procedure Act6 (APA), was prone to manipulation by judges, created systematic bias in favor of the government, and created “a license authorizing an agency to change positions as much as it likes”7 thus fostering “unwarranted instability in the law.”8 In 2022, the Court announced an exception to Chevron, to the effect that major questions of economic and political significance cannot be resolved by agencies absent “clear congressional authorization.”9 The signals were abundant that the Chevron doctrine had lost the support of the conservative members of the Court,10 who now make up a strong six-member majority.
The basic requirement of the Chevron doctrine came to be called the “two-step” approach to judicial review of agency interpretations of their authorizing statute.11 In its canonical formulation, taken from introductory paragraphs in an opinion authored by Justice Stevens for a unanimous but short-handed Court in 1984,12 it required reviewing courts to ask two questions. First, using the “traditional tools of statutory construction,” has Congress provided the answer to the particular issue presented?13 If yes, the court must enforce that answer, whatever might be the views of the agency.14 If no, then the court should ask whether the agency interpretation is one that a reasonable interpreter might adopt.15 If reasonable, the court should uphold the agency interpretation as permissible, even if it was not the one the court regards as the best interpretation.16 The implication of this second step, which was spelled out near the end of Justice Stevens’s opinion, was that questions of statutory meaning not resolved by Congress often have multiple permissible answers, and selecting the preferred interpretation involves considerations of policy, which should be resolved by an expert agency accountable to the elected President, rather than by a non-expert court protected by life tenure.17
With Chevron overturned, the pressing question for Congress, the many administrative agencies, the lower federal courts, and the lawyers who advise or appear before these institutions will be: What takes its place? Loper Bright said courts must always exercise independent judgment in determining whether an agency has properly interpreted the meaning of the law that it administers.18 Independent judgment, however, turns out to be something of a term of art. It means the court must always determine and enforce “the best” answer to the question of statutory meaning, even when the statute is silent or ambiguous.19 But it does not mean that the agency’s views should be ignored. Loper Bright makes clear that independent judgment includes three substantive canons of interpretation that apply when a court is reviewing an agency interpretation: the canon giving “weight” to agency interpretations that are contemporaneous with the statute or have been consistently maintained;20 the canon associated with Skidmore v. Swift & Co.21 that instructs courts to assess the agency interpretation against several factors in order to determine if it is persuasive;22 and the canon that asks if the statute in question confers discretion on the agency to adopt a reasonable interpretation of the question at issue.23
Loper Bright thus abandons the two-tier standard of review associated with Chevron, in which courts generally applied independent judgment at step one in deciding whether a statute is ambiguous but moved at step two to a poorly specified inquiry into whether the agency interpretation was “reasonable.” Loper Bright mandates a one-step approach in which the court always has the last word, but that includes an augmented conception of the traditional tools of interpretation designed to allow the court to take advantage of agency expertise and insights, and to enforce congressional signals about the appropriate interpreter in particular circumstances. The move to conceptualizing review of agency interpretations using substantive canons of interpretation is consistent with the Court’s recent jurisprudence of statutory interpretation, in which legislative history has greatly receded in importance and substantive canons of interpretation have proliferated.24
The history of the Chevron doctrine is more than strange.25 After starting in obscurity, it slowly grew to become the most widely cited decision in administrative law.26 According to one source, the two-step framework was applied by the Court itself in over 100 reported decisions before the Court stopped using it.27 To be sure, the doctrine was always controversial, and neither the Supreme Court nor the lower courts consistently invoked the Chevron framework in all cases where it arguably should have been applied.28 In a few cases, the Court reversed and remanded lower court decisions for failing to apply Chevron, treating it as a rule of law.29 But in others, the framework was simply ignored.30
Justice Scalia, after his elevation to the Court from the D.C. Circuit in 1986, became Chevron’s foremost champion.31 He consistently urged the broadest possible application of the doctrine and chastised other Justices for adopting limiting principles.32 During his time on the Court, Chevron was widely regarded as a conservative doctrine, thought to facilitate deregulatory initiatives by the Reagan and Bush Administrations.33
Shortly after Justice Scalia’s death in 2016, perhaps in reaction to the Obama Administration’s use of aggressive administrative action to address the status of undocumented migrants and climate change, conservative commentary about Chevron turned sharply hostile.34 Chevron was depicted as a critical reason why authority to set public policy was drifting away from Congress toward the administrative state.35 Conservative critics urged the Court to overrule Chevron and to instruct lower courts to interpret the legal authority of agencies in terms of the original public meaning of the statutes that created them.36 This reform, it was argued, would force Congress to resume the role of primary policymaker, in keeping with the assumptions of the Framers of the Constitution.37 President Donald Trump’s ability to place three new Justices on the Court — the first two of whom had been publicly critical of Chevron — created the conditions for achieving this objective.38
With six conservative Justices in place, some harshly critical of Chevron and others at least skeptical of some of its applications, the principal impediment to eliminating the Chevron doctrine was stare decisis. Justice Roberts’s opinion for the Court in Loper Bright concluded that overruling Chevron was warranted because the doctrine conflicted with the APA, had proven to be unworkable, and had not generated significant reliance interests.39 These propositions are debatable and were sharply contested by Justice Kagan in her dissenting opinion.40 They are considered more closely in Part II. Even if the arguments for overruling are defensible, it is odd that they were discovered only recently after thirty-plus years in which the Court itself (including three of the Justices in the majority) treated Chevron as settled law and intermittently chastised lower courts for failing to apply it.
Some, following the lead of Justice Kagan in her dissenting opinion,41 will denounce Loper Bright as a power grab by the Supreme Court, allowing unelected federal judges to “say what the law is”42 in all cases rather than sharing interpretive authority with administrators. There are several reasons why this judgment should be qualified. One is that there is little conclusive evidence that the Chevron standard ever produced significantly more acceptance of agency interpretations than alternative standards.43 Another is that the Court had sound reasons for concluding that the Chevron doctrine produced unpredictable results, given its use of the elastic concept of ambiguity for allocating primary interpretive authority between courts and agencies.44 A third is that the Loper Bright doctrine, in the hands of judges who are appropriately modest about their ability to plumb the depths of complex regulatory statutes or to understand highly technical issues, could easily be applied to leave significant interpretive authority with agencies. This does not characterize the current Justices in the Court’s majority, who have extraordinary self-confidence about deciding virtually anything. But whether Loper Bright turns out to be a power grab or a new framework accommodating significant acceptance of agency interpretations probably depends more on the attitude of the judges than on the specific mechanics of the legal regime used in reviewing questions of law.
Part I considers the legal question at issue in Loper Bright and why the Court chose it as the vehicle to reconsider Chevron. Part II assesses the Court’s rationale for overruling Chevron, and concludes that the majority failed to establish that Chevron violates the APA and adopted an overly narrow conception of the reliance interests affected by an overruling. Part III examines whether clarification of the Chevron doctrine — such as the way in which the Court cabined Auer deference in Kisor v. Wilkie45 — was possible. Part IV attempts to crystalize the Loper Bright doctrine, examining what is clear — and what is uncertain — after Chevron’s demise.
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* Charles Evans Hughes Professor, Columbia Law School. The author benefited from conversations and a colloquium at Columbia about Loper Bright. Special thanks to Joe Kearney, Gillian Metzger, Lev Menand, Luther Munford, David Schizer, and Jim Speta. Support was provided by The Henry and Lucy Moses Faculty Research Fund.