The Leviathan Has Not Been Tamed

When the Supreme Court overruled the doctrine of Chevron deference in this term’s case Loper Bright Enterprises, Inc. v. Raimondo, the political Left reacted with outcry. 

Some of that outcry was predictably shallow and self-interested, like law professor Larry Tribe’s post on X that “[t]he ones I feel sorry for are my administrative law colleagues who built their courses and careers around the intricacies of Chevron deference.” Of course the demise of Chevron deserves to be evaluated on its merits, not on the job security of a cadre of Ivory Tower law professors.

But on the merits, the Left claimed Loper Bright was the equivalent of the sky falling down for the administrative state. Harvard Law professor Richard Lazurus said Loper Bright “was a convulsive shock to the legal system.” Tribe said that it “essentially deconstructed the administrative state.” Georgetown University law professor Stephen Vladek used Loper Bright to illustrate his view that the Supreme Court had engaged in “the most aggressive restructuring of the federal government in our lifetimes” by taking “a massive amount of power away from … executive branch agencies.” 

Would that it were so. No one is more eager than I am to see the administrative state deconstructed.  

In reality, however, Loper Bright is an incremental step toward correcting the bloat and power imbalance of the modern administrative state. Its short-term consequences are in doubt and its long-term consequences will be modest. Why? 

First, by 2024, Chevron deference had already become a disfavored doctrine. As Justice Gorsuch described when dissenting from the denial of certiorari in 2022, “the aggressive reading of Chevron” had, even then “fallen into desuetude—the government rarely invokes it, and courts even more rarely rely upon it.” Chief Justice Roberts acknowledged in Loper Bright itself that the Supreme Court had “avoided deferring under Chevron since 2016,” part of a trend in which, “for decades” the Court has “often declined to invoke Chevron even in those cases where it might appear to be applicable. While isolated plaintiffs could be and sometimes were still caught in Chevron’s crosshairs, the doctrine was no longer driving the bulk of judicial decision-making about the proper scope of executive branch regulations. 

Second, unless and until Congress chooses to legislate more specifically and with fewer statutory ambiguities, the effect of Loper Bright will be to shift the interpretive power over federal regulations away from the administrative state (this is good) and toward the federal judiciary (the effect of this is unknown). Chevron deference applied where it was necessary to resolve statutory ambiguities unresolved by Congress. There is no doubt that deferring to agency interpretations in that circumstance — and doing so regardless of whether those interpretations were the best or fairest available, as Chevron required — illegitimately aggrandized the power of the unaccountable federal bureaucracy. It is good that the Supreme Court officially jettisoned that practice.

But after Loper Bright, federal courts will now decide whether an agency’s interpretation of a statutory ambiguity is the best or fairest available using the traditional tools of statutory interpretation. It is too soon to predict what the net effect of relocating this power in the federal judiciary will be. Only a few cases ever reach the U.S. Supreme Court. Most are decided by the federal district courts (365 Democrat-appointed judges, 268 Republican-appointed judges) and by the federal courts of appeals (8 circuits with Democrat-appointed majorities, 4 circuits with Republican-appointed majorities), and in light of those numbers, the likelihood of many decisions going against the federal bureaucracy seems slim. This relocation of power is happening at a time when Republicans hope to retake the executive branch, too. If they do, it is Republicans who will be undertaking and defending regulatory actions for four years, and needing to persuade a Democrat-leaning federal judiciary that its actions are the best and fairest interpretation of federal law. And it will take at least four years to return the makeup of the federal judiciary to the more favorable state in which the Trump administration left it in 2020.

Third, Loper Bright itself contains important caveats that limit its reach. Previous decisions applying Chevron deference will continue to receive “statutory stare decisis,” which is a heavy presumption that those decisions will not be overruled. That means forty years of existing Chevron jurisprudence will remain intact for the foreseeable future, and possibly forever. Other doctrines exist (and have been recently reaffirmed) that maintain other aspects of the administrative state’s power. In 2019, the Supreme Court reaffirmed a doctrine called Auer deference, in which courts defer to agencies’ interpretations of their own ambiguous regulations. Loper Bright does not disturb that doctrine, which will continue to bias regulatory outcomes against individuals and toward the powerful interests embedded in the administrative state. Similarly, the court will still adhere to Skidmore, an 80-year-old judicial precedent which allows courts to “properly resort for guidance” to an agency’s “body of experience and informed judgment.”

If doubt remains as to Loper Bright’s modest consequences, Chevron itself provides a case study worth considering. In the years leading up to the Chevron decision, some conservative scholars and jurists had become disillusioned with a federal judiciary they believed was too willing to substitute its judgment for that of the executive branch. As Ken Starr described when discussing Chevron in a 1986 law review article, “Chevron made it more difficult for courts to overturn policy choices made by agencies when those choices are embodied in legal interpretations of statutes administered by the agencies.” As a judge, Starr made frequent use of Chevron deference. And Justice Scalia, in fact, has been credited (or blamed) for developing what would become the Chevron doctrine during his time on the D.C. Circuit. 

In other words, Chevron itself was a largely conservative idea, meant to combat a power shift to the federal judiciary. Loper Bright now returns the legal landscape to pre-Chevron times (1984 — hardly ancient history) by undoing a conservative innovation that turned out to be too little considered. 

The outcome in Loper Bright is good, to be sure, but it will not remake the administrative state or solve the post-New Deal power imbalance in the federal government. The Left cries foul because it benefits the larger project of delegitimizing the Supreme Court. But the Right should remain sanguine and cheer an incremental victory while recognizing it as merely that.