De Novo Review Is Working: A Response to CPR’s Loper Bright Report

Last month, the Center for Progressive Reform (“CPR”) published a report analyzing the reception of Loper Bright in the lower courts.  CPR’s headline empirical finding is that agency “win” rates have dropped from roughly 70% under Chevron to just 57% in the fourteen months following the Loper Bright decision.  Given this shift, you might expect the authors—James Goodwin and Federico Holm—to read the trend as substantiating what Loper Bright was designed to do: put judges back in the business of saying what the law is, while also correcting the drift of agencies that were long operating outside the bounds of their express statutory authority. 

Yet, in an accompanying blog post, Goodwin opts instead for rhetorical bravado, advancing the bold claim that, while Loper Bright might be popularly treated as an “anti-regulatory” decision, it is in fact “anti-democratic” and “will reinforce existing power disparities in our society.”  This is unfortunate framing that is ultimately unsupported by the data underlying CPR’s research.  Recent legal outcomes are hardly evidence of a “juristocratic regime” run amok; they are proof that federal courts are once more fulfilling their constitutional role.  On closer inspection, the doctrinal “complexities” that Goodwin and Holm highlight as grounds for concluding there is “no Loper Bright ‘framework’ to speak of” are either overstated or fully reconcilable with the logic of de novo review.

Statutory Stare Decisis: Unsettled, but Not Incoherent

CPR’s report is based on the authors’ review of ninety-one federal court decisions that were issued in the wake of Loper Bright.  Goodwin and Holm confidently claim courts have been all over the place with their application of Loper Bright, pointing to certain “complexities” in the Loper Bright paradigm that supposedly undercut a comprehensible de novo standard of review.  Consider, first, what Goodwin and Holm term Loper Bright’s statutory stare decisis “offramp.”  They characterize stare decisis as a sort of exception to de novo review, which ought to apply whenever the “meaning” of a “statutory term . . . has been determined in a previous case using the Chevron deference framework.”  But this is a gross simplification of how stare decisis works.  And it fails to provide actual context as to how lower courts are grappling with the principle. 

When Chief Justice Roberts suggested Loper Bright would “not call into question” the “holdings of those cases that specific agency actions are unlawful,” he admittedly failed to define his terms.  Courts have been left asking: Does stare decisis attach to specific agency action—such as a discrete rulemaking—upheld under Chevron?  Or does it attach to the underlying legal interpretation used to justify that action?  And what happens if a precedent leaves space for multiple permissible readings, as the Trump Administration argues with Babbitt v. Sweet Home in a recent final rulemaking discussed by my colleague, Michael Pepson, here.  To add fuel to the proverbial fire, it also remains unclear whether the Chief Justice intended for the phrase “prior cases” to include circuit precedent, as opposed to just the Supreme Court’s past decisions.  

Different courts have sought to resolve these questions.  And we have covered as much here, here, here, and here—to provide just a few examples.  But none of this apparent confusion is insurmountable, nor does it suggest Loper Bright is “anti-democratic.”  It is simply part of the normal reception of any landmark case.  Eventually, the Supreme Court will likely step in and provide further clarity.  In the meantime, it is good for these issues to percolate through the courts of appeals.

Ambiguity as Loper Bright “Step One”?

Goodwin and Holm identify another “complexity” that they argue is a second “preliminary issue” courts must address “before reaching de novo review”: whether a statutory “term at issue is in fact ambiguous.”  This “determination,” they claim, “mirrors Step 1 of the now-defunct Chevron deference doctrine.” 

It is unclear where this supposed requirement can be found in Loper Bright itself.  The Court was clear that the end of Chevron deference meant the end of implicit delegations based on textual ambiguity.  Regardless of whether a particular term might be prone to multiple interpretations, it is the court’s role to provide independent judgment as to the best reading of the law.  “In the business of statutory interpretation, if it is not the best, it is not permissible.”  That is the heart of de novo review.  As the Chief Justice explained:

The APA . . . codifies for agency cases the unremarkable, yet elemental proposition reflected by judicial practice dating back to Marbury: that courts decide legal questions by applying their own judgment.  It specifies that courts, not agencies, will decide “all relevant questions of law” arising on review of agency action . . . even those involving ambiguous laws[.]

Although there have been a few instances when supposed textual ambiguity has led to what Judge Rao calls “Loper Bright avoidance,” this does not appear to be a widespread phenomenon.  The more pressing issue is residual uncertainty over the level of “due respect” owed to an agency when its interpretation of the law “rests on factual premises” within its scientific or technical “expertise.”  This, of course, raises separate questions about the compatibility of Loper Bright with existing deference doctrines like Baltimore Gas.

Discretion Within Statutory Bounds: Not a Chevron Revival

Ultimately, the other alleged doctrinal inconsistencies discussed by Goodwin and Holm are reconcilable with the logic of de novo review and a proper textualist approach to reading law.  For example, the CPR authors argue Loper Bright covertly resurrects Chevron Step Two by conceding that sometimes a “statute’s meaning may well be that the agency is authorized to exercise a degree of discretion.”  In these situations, Loper Bright and de novo review yields to hard-look review under the APA’s more deferential “arbitrary and capricious” standard.  Such a delegation might occur when Congress gives an agency the express power to define terms or regulate according to capacious terms like “appropriate” or “reasonable.”

Determined judges will always be able to manipulatively identify and define the scope of these “Loper Bright delegations,” perhaps even as a way of reintroducing Chevron-like deference.  We have discussed as much in the past, here and here.  And it is unclear what sort of deference—if any—ought to apply to mixed-questions of law and fact.  Yet the fact remains that courts retain responsibility for ensuring that any delegation is properly defined and bounded, and that discretionary agency action remains within the realm of the permissible.  Policing a delegation, in this way, entails more robust judicial engagement with the law than was required under Chevron.  And there is no doctrinal inconsistency!  As Justice Kavanaugh has long explained, “a judge can engage in appropriately rigorous scrutiny of an agency’s statutory interpretation” and “simultaneously be very deferential to an agency’s policy choices within the discretion granted to it by the statute.”

Skidmore? No more!

The final issue highlighted by Goodwin and Holm is Loper Bright’s passing reference to Skidmore deference and the notion that agency interpretations can “constitute a body of experience and informed judgment to which courts and litigants properly resort for guidance.”  In their view, any reliance on Skidmore “has the practical effect of reducing the conceptual distance between Chevron and Loper Bright in many cases.”

Goodwin and Holm are correct that, in the immediate wake of Loper Bright, there were some courts willing to “treat Loper Bright almost as if it ha[d] reinstated Skidmore respect analysis as the prevailing mechanism for resolving statutory ambiguity.”  The leading case—and perhaps the most extreme example—was the Ninth Circuit’s panel decision in Lopez v. Bondi.  (Of note, Judge Bumatay authored a forceful takedown of the Circuit’s denial of rehearing en banc, as we highlighted at the time.)

Yet, as Loper Bright implementation continues, Skidmore is not likely to undergo any serious revival.  Most courts have not followed the Ninth Circuit’s lead.  As I explained here and here, the Supreme Court’s use of Loper Bright  throughout the October 2024 Term suggests that judicial “respect” for an agency’s legal interpretation only makes sense when that interpretation is probative of the original public meaning of the statutory text.  For example, in cases like Kennedy v. Braidwood Management and Bondi v. VanDerStok, the Court framed its consideration of agency interpretations through concrete application of well-established canons of interpretation like contemporanea expositio and interpres consuetudo.  These venerable canons attend to longstanding and consistent agency practice—factors later associated with Skidmore deference. 

Unfortunately, Goodwin and Holm fail to appreciate how this misleadingly selective attention to only some of the Skidmore factors was neither unintentional nor haphazard, but instead part of a broader push towards a more faithful textualist methodology focused on original public meaning.  That the CPR report notes the low marginal utility of deploying robust Skidmore arguments in the post-Chevron paradigm arguably reflects the Court’s methodological push.

Conclusion: Goodwin and Holm Undercut their Own Thesis

CPR’s “numbers” hardly suggest a massive shift towards courts blessing deregulatory actions or reversing agency interpretations.  As explained at the outset, Goodwin and Holm estimate that agency “win” rates under Loper Bright approximate what they were before the advent of Chevron deference.  To be sure, moving from a 70% win-rate under Chevron to a 57% win-rate under de novo review may be statistically significant.  But it is unclear why that shift doesn’t underscore the problem with Chevron in the first place, which functioned as an incentive for agencies to go beyond the bounds of their express statutory authority.  That agencies are now faring “very poorly” (or more accurately, less overwhelmingly well but still more than half the time) when the underlying statutory authority is “unambiguous” proves the point.

Goodwin and Holm are plainly wrong that Loper Bright is “anti-democratic” and “reinforce[s] existing power disparities.”  Loper Bright is coherent and, while its implementation has not been uniform, that is hardly cause for concern.  The lower courts are reaching agreement about how de novo review under Loper Bright should operate after the forty-year-old Chevron experiment.  That is going to take some time to work its way through the system.  Plus, if anything, Loper Bright is best understood as a democratic and constitutional corrective.  Congress is the most politically accountable branch.  Ensuring that agencies follow Congress’s statutory directives—and not the President’s—forces our representatives to assume responsibility for legislating, rather than shifting that role to unelected bureaucrats.

Ryan P. Mulvey is senior policy counsel at Americans for Prosperity Foundation.