Will Lower Courts Preserve the Administrative State?

Even if many close court-watchers anticipated overturning Chevron deference during the Supreme Court’s last term, where the Court would place its accent remained an open question. However, the overturning of Chevron in the Supreme Court’s Loper Bright/Relentless decision will not be shaped exclusively or even largely by what the Supreme Court said or what Congress does in its wake, despite what the text of the Court’s opinion earnestly wishes. As frequently happens, lower federal courts will likely play an immense role in coloring Loper Bright’s precedential meaning, as well as provide contrasting views on regime-level considerations on administrative rule. 

Commentators have observed that the clearest change necessitated by the text of Loper Bright concerns how federal courts should treat ambiguous statutory terms. Under Chevron, statutory ambiguity resolved by administrative determination deserved judicial deference so long as that determination was reasonable. In virtually all other legal contexts, judges must interpret ambiguous statutes and their terms rigorously. Chevron allowed a relaxed standard within the administrative context.

According to administrative law expert Adam White, Loper Bright ended administrative exceptionalism. Agency interpretations of ambiguous statutory terms will now receive a neutral interpretation without a judicial thumb on the scales in favor of agencies. Removing a thumb from the scales reinforces the idea that legal interpretation of an ambiguous statute by an agency is given no special weight when that interpretation is challenged in the lower courts after Loper Bright. Lower courts may only recognize that Congress has delegated policy making discretion to an agency, not legal interpretation. Agencies’ interpretations of ambiguous terms within a statute or statutes themselves are not to be wholly ignored, but rather freshly reviewed by courts. Indeed, agencies’ interpretations may survive judicial scrutiny if they are sufficiently persuasive readings.  

Detractors are telling a different story, however, minimizing the significance of Loper Bright for lower court judges by focusing on the following line from the majority opinion: “In a case involving an agency…the statute’s meaning may well be that the agency is authorized to exercise a degree of discretion. Congress has often enacted such statutes.” Harvard Law Professor Adrian Vermeule, one such detractor and a defender of Chevron, thus called Loper Bright “a relabeled version of Chevron.” Seizing on that line regarding congressional authorization of policy discretion, he argued that “the judges will now say that the best reading itself is that Congress has (in the majority’s terms) ‘authorized the agency to exercise a degree of discretion’ in giving necessary specification and concretization to ‘substantial restoration.’” Abiding by this approach collapses the law-versus-policy distinction that the majority opinion took pains to distinguish. Still, some lower courts may reason as such in the wake of Loper Bright. As Vermeule wrote elsewhere before the Court issued its opinion in Loper Bright, they will do so “to avoid having to actually do fully independent interpretation of statutory terms that are vague, technical, or both.”

Looking to lower courts to understand the post-Chevron landscape would have been crucial even without the possibility of confusion over the law-versus-policy distinction. For example, while the Supreme Court spent the better part of the last decade not citing Chevron in its own opinions, the lower courts still relied on it extensively. Indeed, in the actual Loper Bright litigation, the D.C. Circuit chiefly relied on Chevron in deferring to the agency’s interpretation of the statutory term at issue.

History furthermore shows that Chevron became a significant precedent because of its transformation in meaning largely in the lower courts beginning in 1984. Chevron scholar Thomas Merrill noted in his book The Chevron Doctrine that Chevron invited “busy lower-court judges” to “simply ratify whatever the agency proposes to do.” As I have written elsewhere, drawing on Merrill’s book, “compared ‘to the complex matrix of factors that prevailed in the pre-Chevron era,’ lower courts embraced the relative simplicity of the formulaic two-step Chevron analysis.” Lower court judges ratified again and again the meaning of Chevron as deference to agency interpretations of ambiguous terms, and then they presumed the reasonableness of those interpretations. Scholars and other judges, foremost Antonin Scalia, supported the lower courts’ understanding of Chevron. Decades would pass before any reconsideration of Chevron’s wisdom. 

Distillation of Supreme Court precedents by the lower courts occurs frequently. When disagreements among lower courts arise, the Court resolves circuit splits among its regular business. In some instances, the lower courts play a more prominent role in revealing the fault lines for competing philosophies of governance. Lower courts have increasingly been the forums where the fault lines of what Tom Klingenstein describes as a “cold civil war” are shown. While some lower courts pump the brakes on the progression of this conflict, others press the accelerator.

Two examples suffice. Most prominently in recent years, lower courts have applied the holding in Bostock v. Clayton County, the Supreme Court’s decision over whether the meaning of sex under Title VII of the Civil Rights Act is read to incorporate transgenderism, well beyond the employment context and into equal protection more broadly. Just this year, Kadel v. Folwell in the Fourth Circuit as well as Lange v. Houston County in the Eleventh Circuit extended the holding of Bostock to new areas of our law and our civic life. Each of these opinions brought forth stinging dissents from conservative jurists about the risks of misreading Bostock. Until the Supreme Court corrects these misreadings, they will proliferate throughout the courts. 

Another example, emerging still, is over the scope of the Second Amendment. Concerns over the “workability” of the Court’s 2022 broad ruling in Bruen, which established a history and tradition test popular among originalists for the protection of the right to bear arms, led the Court to issue its more limited protection of the Second Amendment this past term in Rahimi. Lower courts, such as in U.S. v. Bullock, forced the issue when they began setting aside statutes forbidding convicted felons from owning firearms, citing Bruen. Note how some lower courts may secure the power of one side in the cold civil war by sowing confusion with aggressive interpretations of Supreme Court precedent. These lower courts effectively implement a rival vision of the grounds of the regime while revealing those fault lines of the cold civil war. 

How will lower courts shape the understanding of Loper Bright? As noted, we may see Prof. Vermeule’s approach embraced, thus endorsing a limited reading of Loper Bright as instituting only modest changes for how lower courts should treat statutorily ambiguous terms in the administrative law context. The temptation to follow this tack comes from the practical desire to expend fewer judicial resources on the more difficult task of neutrally interpreting statutory ambiguity. But as noted, some lower court judges will also be eager to slow-walk the wholesale alteration in our jurisprudence in service of bucking the “originalist” Supreme Court majority responsible for Loper Bright. If federal agencies observe something less than uniformity in the lower courts, they may act as if Chevron deference is still good law. The fault lines of the cold civil war will emerge more clearly if this occurs frequently, since Loper Bright specifically sought to remove the worst excesses of ambiguity that give license to policymaking without clear congressional authorization.

More optimistically, we may see strong opinions and separate writings affirming the straightforward understanding of Loper Bright as, at least concerning the lower courts, requiring the judiciary to perform an independent reading of statutory text. Judicial resources, precious as they are, ought to be expended on such a fully independent interpretation. Not only has the Supreme Court held as much in Loper Bright, but a judicially independent interpretation also hews most closely to the moral understanding of the separation of powers as instantiating the “Golden Rule” in our system of government. As Hadley Arkes has written, “[the separation of powers] puts the question of what the principle is behind one’s position and whether he would be willing to honor the same principle when it cuts against his interests.” With the Chevron era now past, agency lawmaking, enabled by the judiciary’s thumb on the scale, no longer may short-circuit the separation of powers.

The experience of how judges in states without Chevron-like deference have operated for decades — twenty-five, including California — should demonstrate that the sky will not fall without Chevron. Yet only close attention to the lower courts will allow a bright-eyed understanding of how Loper Bright develops.