Abstract

Loper Bright is not a judicial power grab, nor is it a necessary corrective to an administrative state run amok. It is an expressive act—an attempt to make a value statement rather than an attempt to destroy the administrative state. The Supreme Court felt the need to state clearly that even in cases involving review of an agency action, courts must have the final word on the “interpretation” of “law.” The opinion can thus best be seen as a self-conscious assertion of the Court’s independence from the President and executive branch more generally—a Declaration of Judicial Independence, so to speak.

Doctrinally, the Court merely provided an analytically cleaner structure into which the same considerations that courts used under Chevron can play out. We can see this in at least four features of the majority opinion: (1) the opinion’s purely deductive structure; (2) the absence of any criticism, or even mention, of specific agency interpretations or cases wrongly decided under Chevron; (3) the obsession over Chevron footnote 11, which told courts to defer to an agency’s interpretation even when the court would have interpreted the statute differently; and (4) the explicit acknowledgment that Congress at times delegates “discretionary authority” to agencies and that courts may continue to give agencies Skidmore “respect.” 

Stepping outside of the opinion, we can also see that Loper Bright’s changes are likely to be minor by looking at the broader institutional environment in which litigated challenges to agency actions play out. Key is that Loper Bright does not change anything about the broader underlying factors that shape challenges to agency actions. The opinion does not affect the comparative competence of courts and agencies, an important part of how doctrine played out under Chevron; it also leaves open the role of courts in the many cases involving so-called “mixed questions of law and fact,” many of which implicate agency expertise. Nor does the opinion affect the comparative capacity of agencies and courts—or of the litigating bar. These institutional factors are likely to dampen the overall impact Loper Bright will have on the aggregate scope of decisions agencies can make. Loper Bright is completely consistent with a continued robust administrative state.

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