In Part I, I outlined why one of the key judicial rules of review facilitating, more than governing, the administrative state, had to change. How will various parties respond to a post-Chevron environment?

Litigants will probe the boundary lines for what can still be done through executive branch rulemaking. They are more likely to test newer regulations that have less history and evidence behind them. The Supreme Court ruling in Loper Bright preserved statutory stare decisis protection for cases previously decided under Chevron review. The installed base of modern federal regulation remains largely safe from legal challenges. Nevertheless, litigants will explore at the margins just where respect for precedent ends and a newer face on future regulation begins, such as through enforcement actions brought in somewhat different contexts than before. Playing defense will be easier than advancing on offense, as is generally true in most contemporary policymaking.

However, executive branch rulemakers will be more cautious in how far they reach for additional authority, particularly when it strays too conspicuously from previous legal interpretations. New administrations may find their ambitions for rewriting key rules in new directions face steeper hurdles than once assumed. Reviewing courts should be more likely to uphold earlier interpretations hewing closer to statutory text than to rewrite them. The power of the first mover in interpreting more ambiguous statutory provisions will be enhanced greatly, whereas deviating significantly from previous readings of longer duration and more consistency will be viewed quite skeptically by federal courts. More zealous political advocates initially fear the worst, or hope for the best, but today’s balance of legal forces is no more permanent than the one that initially launched and nourished Chevron.

The most likely outlet for executive branch bypassing of the courts and even Congress will involve increased use of less formal and binding guidance, selective enforcement, and other tools to the administrative state that bypass APA-style notice and comment rulemaking. The administrative state still can flood the zone of increasingly clogged, slow-moving courts.

We may hope for more transparently accountable lawmaking in Congress someday, with more targeted legislation that indicates clearer ways and means to achieve its goals, but the more likely short-term impulse could be to spell out select areas of express delegation to executive branch agencies. Doing so will limit the scope and scale of legislative deals that could have been struck through the modern standbys of ambiguity and obfuscation.  

The same court system that got Chevron wrong will muddle through with older standards of review, at least until new judicial excesses in statutory interpretation and regulatory review trigger future efforts to strike a different balance. These periodic swings of the relative power balance between the branches of government are not permanent, but they provide clear indicative of having gone too far in one direction. Given that American society just might again manage to survive without the next creatively imagined extension of agency authority, providing some more traditional judicial scrutiny of executive branch rulemaking should be modestly therapeutic. Until Congress and the executive branch do a better job in seeing that the laws can, and will be, executed faithfully, the courts will have to do in their traditional constitutional role of interpreting them more definitively, if not perfectly. Executive agency expertise should still be accorded appropriate respect, but not default toward automatic deference. RESPECT, instead of deference: Let’s find out what it means.

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