Some (Very) Preliminary Musings on the Loper Bright Case Next Term Involving the So-Called Chevron Deference Doctrine

Posted in: Constitutional Law

As the calendar turns from July to August, attention is properly beginning to focus on the Supreme Court’s upcoming term (even as there is still much to digest from what came down in June.) One of the potentially most important cases on the Court’s docket (likely to be argued sometime in the fall) is Loper Bright Enterprises v. Raimondo. The narrow question presented deals with a pretty arcane federal policy that requires owners of fishing vessels to make room on the vessels—and pay the salaries—for federally required “observers” who, while they are at sea with the fishing crews, collect data and monitor various actions by the fishing crew in order to allow the federal government to enforce myriad regulations and limitations on fishing businesses. But the bigger issue, and one which the Court explicitly granted review, focuses on the so-called “Chevron” doctrine (named for a 1984 Supreme Court ruling in which the Chevron company was a party), under which federal agencies’ interpretations of ambiguities in statutes they administer are accepted by federal courts so long as the agencies’ interpretations are “reasonable,” even if they are not the “best” interpretations. That is, even if an agency’s interpretation is not one the federal court would find to be the most coherent and convincing way to understand ambiguous statutory text, the court defers to and allows the agency to regulate based on the agency’s interpretation so long as that interpretation is minimally reasonable.

Although many of the briefs and commentary about the Chevron question will home in on technical and sometimes dry administrative law topics, in the space below I want to ask (and answer, albeit provisionally) about the constitutional issues raised by Chevron deference and this Loper Bright case in which the Court might reconsider it.

As a general matter, how does Chevron deference fit with the Constitution?

To me, somewhat uncomfortably.

In our system of constitutional lawmaking, broad statutory conferrals of power to the Executive branch are dangerous for two distinct yet related reasons. First, concentration of too much authority in the hands of a single person—and Article II’s text makes clear the Executive branch must ordinarily be controllable by a single person, not a multi-member institution like Congress or the Supreme Court—risks converting American constitutional democracy into a soft dictatorship. Imagine, for example, a statute conferring power on the President to make all “economic regulations that he deems necessary to promote national economic health and that are otherwise within the federal government’s authority.” Surely this kind of wholesale consolidation of federal policymaking power (subject only to the limits represented by the Tenth Amendment and individual rights) into the hands of a single individual risks creation of the same kind of tyranny the United States fought to defeat in the first half of the twentieth century. (The New Deal cases in which the Court struck down provisions of the National Recovery Act on the ground they impermissibly delegated legislative power to the President may be thought of as precisely these kinds of laws, and at precisely a time when dictatorships were not just abstract political science notions.) So too, a law that overtly makes the President the sole and final arbiter of the meaning of all federal law, notwithstanding Article III’s grant of the “judicial power” to federal courts, would similarly pose a constitutionally unacceptable risk of dictatorship and tyranny.

Second, and more insidiously, statutes may confer on presidents power that ends up being exercised in ways inconsistent with the likely understandings of the three institutional actors—House, Senate, and President—who came together to fashion the statute in the first place. The Constitution vests all legislative power (that is, power to change basic federal governmental policy from the status quo ante) in a system of lawmaking that requires agreement by a majority of the House and the Senate and assent by the President, or (in the absence of presidential agreement) agreement by supermajorities in the House and Senate. Neither the House, nor the Senate, nor the President alone is constitutionally permitted to fashion new law without working with one or both of these legislative partners. In this respect, the Constitution’s separation of powers is not so much a literal separation between but instead a mutual interdependence among lawmaking institutions.

What yokes both of these dangers—the dramatic, wholesale consolidation of power into the hands of the President and his underlings, and the less obvious but very real practice of statutory implementation that betrays the original legislative deal struck by the House, Senate, and President—is the fact that authority delegated by statutes to the President and his team cannot easily be reclaimed by attempts to enact subsequent legislation, on account of the President’s veto power. The so-called non-delegation doctrine is often described as the notion that power constitutionally vested in one actor cannot be delegated to anyone else. But that traditional formulation is over-determinative; after all, Article II provides that “[t]he executive Power shall be vested in a President of the United States of America,” and yet no one doubts that the President may transfer executive authority to his underlings in the Executive Branch. This is true even as to presidential powers that the Constitution itself (as opposed to congressional legislation) assigns to the President. Some might respond by pointing out that the President is free to reclaim authority he has given to his underlings at will. This is true enough, but it suggests that the essence of the anti-delegation norm is not that vested power can’t be delegated, but that delegations of power that are hard to reclaim or undo are particularly problematic.

As I have explored at more length in academic scholarship, this possibility is supported by seminal work done at the beginning of the last century by Professors Patrick W. Duff and Horace E. Whiteside. These scholars attempted to uncover the origins of the Latin nondelegation maxim, “delegata potestas non potest delegari,” which most people understand to mean “delegated power may not be redelegated.” Their groundbreaking historical research established that the earliest forms of the common law agency nondelegation maxim—thought by many to explain much of the American constitutional nondelegation concern—were phrased somewhat differently: Delegated authority cannot “be so delegated, that the primary (or regulating) power does not remain with the King himself.” As Professors Duff and Whiteside conclude, the concern is that the “King’s power not be diminished by its delegation to others.” Professors Duff and Whiteside’s suggested formulation helpfully refocuses attention on one key aspect of the delegation problem: that delegation is more problematic when it is harder to reclaim.

It is precisely for this reason that I think Chevron raises some constitutional problems. Undoubtedly and unavoidably, this Court has traditionally upheld delegations of broad authority that skirt the elusive theoretical line between lawmaking and law execution, but that is exactly why the Court ought to be attentive to the ability of the lawmaking system to retrieve broad authority that has been conferred. And there are fewer retrieval problems if courts rather than executive agencies decide the scope of executive authority. This is so because agencies are prone to overread the delegation of authority by Congress to them, sometimes to include powers that we might fear constitute lawmaking. If courts are bound to uphold such constructions so long as they are not unreasonable, a simple majority of each House of Congress may be unable to reclaim the broad lawmaking authority, and a delegation problem results.

Perhaps another way to think about this is through the lens of the ascendant “major questions” doctrine, which the Court invoked in the West Virginia v. EPA and Biden v. Nebraska decisions in June 2022 and two months ago, respectively. If (as it said in both these cases) the Court will not readily assume Congress intended to confer the power to executive agencies to resolve “major” policy questions, why would the Court ever assume Congress has attempted to delegate the power to interpret the law itself, which might be thought of, categorically, as a major question.

Does this mean that Congress can never confer power onto the Executive branch to interpret key statutory terms?

Not quite. In spite of the previous discussion, it seems clear, both as a theoretical and practical matter, that the Court could have no objection to a statute that explicitly conferred power onto an executive agency to, in effect, resolve the meaning of a contested statutory term. Imagine, for example, a law that gave the EPA the authority to regulate a particular pollutant whenever “the Agency reasonably determines that the pollutant is causing significant physical harm to children.” While different persons (and judges) may argue about the level of danger the “significant physical harm” threshold in the statute, as written, was intended to address, allowing the EPA to act on its reasonable understanding of that concept could not be considered constitutionally problematic, lest virtually all modern statutory enactments would be considered vulnerable.

What we are confronted with, then, is what the interpretive default rule should be when Congress does not explicitly confer interpretive discretion to an agency in a particular context. Chevron’s regime entrenches a presumption that Congress intended to confer interpretive power in every “enabling” statute unless Congress made clear otherwise. Indeed, this Court has said that the Chevron framework rests on a presumption that “a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.’” On this view, as the Solicitor General has written, “when a reviewing court sustains an agency’s interpretation of an ambiguous statute as reasonable under Chevron, the court is exercising the judicial power to interpret the law as having conferred authority on the agency to resolve the matter within reasonable bounds.”

Yet, as discussed above, the default rule, constitutionally speaking, seemingly ought to be the opposite. If we are worried about the lawmaking system’s ability to reclaim delegated authority, we should not create a presumption by which a simple majority of each House may be unable to retrieve power that has been aggressively defined by an Executive branch that enjoys exercising the power and resists efforts to reclaim it. To build on a barnyard metaphor, just as foxes should not guard henhouses, neither should they be given a large say as to whether the locks get changed.


If the ordinary rule is that courts decide the meaning of federal statutes (in the absence of explicit or implicit evidence that Congress intended to delegate interpretive authority to the executive), and the courts underread the scope of substantive power to federal agencies, then Congress and the President can quickly and cheaply correct the error. Thus, the error costs created by a Chevron-type rule (which include the possibility of unretrievable delegations of legislative authority) seem substantially greater than those of a converse approach.

What about Chevron’s purported virtues sounding in agency expertise and accountability?

Although the Court originally justified Chevron deference in part by reference to agency technical and scientific expertise, this justification does not ultimately wash. Scientific or technical expertise can explain why Congress might vest substantive regulatory power with agencies to implement statutory policies, but it cannot explain why Congress would (or should or could) vest interpretive power with agencies: Chevron deference is at base a doctrine that confers power to the President and the Executive branch to say what statutory meaning is, and to have such interpretative proclamations carry the day unless they are completely unreasonable, regardless of whether the proclamations are correct in the sense of being the best understanding of statutory text. And there can be no claim by the President or the Executive branch, at least no claim fully consistent with Marbury v. Madison, to have legal interpretive competence or expertise superior to that of “the judicial department [whose] emphatic[] province and duty [is]. . . to say what the law is.” Thus, the Solicitor General’s suggestion (in opposing the grant of certiorari in the Loper Bright case) that “Chevron respects the expertise agencies can bring to bear in administering complex statutory schemes” is a non sequitur; agency expertise is respected by the empowerment of agencies to craft rules and regulations implementing Congressional statutes, but not by the empowerment—as a general matter—of agencies to interpret the scope of their own powers under such statutes.

Perhaps for these reasons, Chevron deference, constitutionally speaking, has instead come to be understood to be grounded in the increased democratic accountability federal agencies enjoy vis-à-vis federal judges. Because statutory interpretation is often grounded in policy considerations, and because (relatedly) statutory construction can have tremendous policy consequences, Chevron’s preference for agencies (tethered to an elected and politically accountable President and her political party) over (life-tenured and electorally insulated) judges is thought to be consonant with basic instincts about democracy. As the Solicitor General explained (again in her opposition to certiorari): “By centralizing interpretive decisions in agencies supervised by the President, Chevron . . . promotes political accountability, national uniformity, and predictability . . . .”

But this justification, too, does not fully wash.

As a matter of democratic accountability, federal judicial determinations of the best meaning of federal statutes are no more anti-majoritarian or anti-democratic than are judicial determinations of the best meanings of the Constitution, something federal courts routinely make when exercising judicial review. If federal courts cannot, because of their unelected status, be trusted to construe in the face of some uncertainty the best meaning of statutes, how could they be trusted to construe the best meaning of an even higher—that is, Supreme—law, namely, the Constitution.

Even if Chevron was misguided when decided, should we nonetheless stick with it under notions of stare decisis?

In thinking about the relevance of stare decisis here, we must start with the fact that the Chevron principle involves more than interpretation of a single statute; it involves a manner of interpreting statutes writ large. So at the very least it should for these purposes be considered akin to constitutional common law. And, as noted above, Chevron purports, albeit wrongheadedly, to be grounded in constitutional notions about accountability.

For these reasons, constitutional, rather than statutory, stare decisis principles should govern whether Chevron should continue. And constitutional stare decisis is much less rigid than statutory stare decisis.

Of course, some mistakes by this Court can and do abide because of detrimental reliance on them. Has the existence of Chevron engendered such detrimental reliance? Certainly not for statutes enacted before 1984, like the one at issue in Loper Bright. No one could have relied on Chevron when enacting the law in question here.

How significant is it that Congress has neither rejected Chevron deference by statute nor exempted particular statutes from it?

I think very little significance should be attached to congressional inaction in this setting. It may be true that statutory stare decisis is usually quite weighty in part because of an assumption that Congress can fix judicial misconstructions, and thus its failure to do so should carry meaning. But as noted above, in the particular setting of Chevron, where the executive branch might enjoy its interpretive prerogative and seek to protect it via the threat and use of the veto, it would be hard for the lawmaking system to fix the Court’s mistake. (In this regard, even statutory stare decisis perhaps should be less ironclad, as a general matter, when the past interpretation in question involved affirmance of broad executive power.)

So clearing the slate makes sense.

Undoing Chevron’s rule of statutory interpretive power should not be confused with undoing every substantive outcome that has been reached in past cases where Chevron deference may have done important decisional work. Perhaps detrimental reliance has built up around particular rulings in which Chevron was invoked and relied upon in the past, such that the agency actions upheld in those cases should continue to be permitted, but this question would involve a case-by-case inquiry.

If the Court redresses its mistake by eliminating Chevron as a judicial doctrine, could Congress reinstate Chevron affirmatively, either wholesale or in given statutes?

This is a hard (if hypothetical) question. If, as I suggest, across-the-board Chevron deference is constitutionally problematic, then so too might be problematic its across-the-board reinstatement by congressional enactment. Thus, at a minimum, perhaps Congress can’t authorize (or reinstitute) Chevron in a wholesale fashion, since it couldn’t have any clue about how much power it would be conferring in a way that is hard to reclaim.

But as I also suggest above, Congress can effectively embrace Chevron’s spirit in particular statutory settings by explicitly conferring interpretive power on the executive branch with respect to particular key statutory terms. Like other plain statement rules—e.g., the rule requiring that federal statutes that regulate state entities do so explicitly, or the rule that statutes that abrogate state sovereign immunity do so overtly, or the (emerging) rule that statutes that confer power on the President to resolve “major questions” do so explicitly—the requirement I tentatively propose, of explicit and particularized conferral of interpretive power in statutes limits the potential separation-of-powers harm posed by any single law. Importantly, such an approach would also focus Congress’s (and the American people’s) attention on the dangerous accretion of authority in the President, allowing for better and more accountable democratic decisionmaking.

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