Last week, the Supreme Court finally put a four-decades-long experiment with Chevron-style judicial review of agency action out of its misery. A six–three majority in Loper Bright Enterprises v. Raimondo relied on a reinvigorated section 706 of the 1946 Administrative Procedure Act to overturn its 1984 precedent (and the latter’s mutated offspring) in Chevron v. United States.

This much is clear: Ambiguity alone is no longer enough to justify extensions of regulatory authority beyond the best reading of its statutory authorization. However, the rest of the rebalancing of executive branch agencies’ powers remains a work in progress, subject to other creative probes at reshaping its boundaries. Here are a few initial observations:

(1) Back to the Future

The Court did not unleash unbounded judicial supremacy over agency actions. Older, pre-Chevron tools of review remain very much in play, most notably applying Skidmore-style weight in assessing executive branch interpretations of statutory authority. Thoroughness, validity, and consistency will become more important in defining respect for regulatory rationales, rather than defaulting to deference to them. Courts have done this before, and they can do it again. The Supreme Court just corrected its own long-running mistake launched by Chevron. One down, quite a few more to go! All governmental decisionmakers are imperfect (see, e.g. public choice theory), but they operate better within narrowed constitutional lanes of power that limit their respective excesses.  

Taking a “Why Not the Best” reading approach to statutory interpretation by courts is an appropriate goal here (if not for presidential elections), particularly when compared to offering permission slips to agencies self-justifying their own extensions of power. Fears of runaway courts as apex statutory-interpretation predators both overstate the reach of their power and understate their traditionally necessary role, within a better functioning constitutional order. Chevron may have initially aimed at policing the excesses of courts in running roughshod over administrative law issues, but it ended up enabling far greater excesses on the executive agency side.

(2) Readjusting the Settings for the Burden of Persuasion

The Loper Bright ruling will make it harder for executive branch agencies to stretch their powers beyond the limits of statutory ambiguity or silence. That is not a bad thing, given the current mismatch between supply (by regulators) and demand (by voters) for such rulemaking. If there still “oughta be a law,” Congress and the President might consider trying to pass one that provides necessary legal authority more clearly. Agencies also might even resort to providing stronger evidence and reasoning to support their assertions of authority. They will have to rely more on their power to persuade, rather than presume their power to control.

(3) Chevron Became a Legal Mess Hitting Its Expiration Date.

What exactly constituted Chevron review? Let us count the ways! A long parade of subsequent adjustments, refinements, and exceptions in later Supreme Court rulings never quite got the job done in establishing a more consistently workable regime for review of agency actions. The latest legal smoke signals from the Supreme Court remained hard to translate into more consistent practice at lower federal court levels. They did help launch and sustain a vibrant cottage industry of legal scholars striving to read the latest entrails and make sense of it all, or at least explain them away. Fear not, the latter will find a way to repurpose and publish revised versions of their work soon enough, as new cases evolve under the post-Chevron landscape ahead.

(4) What Does This Mean for Everyone Else?

All branches of government will have to do a better job of handling their appropriate responsibilities. Executive branch agencies will need to spend more time and effort justifying their assertions of authority, without overextending them. Members of Congress might return to their day jobs of legislation and oversight, and even consider the possibilities of compromise and accountability. Courts will have to work harder to find the best meaning of statutes and the limits of legal authority, without wandering back into independent policymaking. Self-governance under the rule of law and a constitution of limited powers is hard work. Voters could lend a hand, by insisting that their representatives actually return to their assigned roles and responsibilities, instead of just providing other entertainment value.

In Part II, I will explore further how these various parties might begin to do this.

The post Recalibrating the Administrative State, Post-Chevron: Neither Clear nor Ambiguous: Part I appeared first on American Enterprise Institute – AEI.