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Earlier this summer, I highlighted the D.C. Circuit’s decision in Hospital Menonita and its rejection of deference to the National Labor Relations Board. Last week, in Siren Retail Corporation v. NLRB, the Second Circuit joined the ranks of the Fourth, Fifth, Sixth, Tenth, and D.C. Circuits by emphasizing the judiciary’s obligation, after Loper Bright, to exercise independent judgment when determining the scope of agency authority, even under pre-APA organic statutes like the National Labor Relations Act. This is an important development that demonstrates how Loper Bright is reshaping the law beyond the APA and the standard of review set out in 5 U.S.C. § 706. There is growing consensus that Loper Bright has constitutional relevance for understanding the judiciary’s responsibility for determining what the law means.
Loper Bright’s Constitutional Force
In Loper Bright, the Supreme Court confirmed that, at least as far as the APA is concerned, federal courts are obligated to provide “independent judgment” as to the “best” meaning of the law. Although courts should pay “due respect” to the views of the executive branch, those views are persuasive only insofar as they are probative of the original public meaning of the law. And they are most persuasive when longstanding and contemporaneously issued with the underlying statute they purport to interpret. In all cases, the text of the law is paramount and remains the principal object of judicial interpretation.
Although Loper Bright can be read narrowly to provide only a definitive interpretation of Section 706, some have wondered whether the decision carries broader “constitutional atmospherics” that impact the validity of other deference doctrines, especially those that developed prior to the APA. One such doctrine involves the NLRB, and rests on a presumption that Congress, through the NLRA, entrusted the Board with substantial discretion to interpret the law as part of its development of national labor policy. On this view, the Board’s interpretations ought to be given “considerable deference” and be subject to “limited judicial review.” This deference co-exists and intertwines with another line of cases stretching back to NLRB v. Hearst Publications, which suggests deference is due to the Board on so-called “mixed questions” of law and fact that arise whenever legal standards under the NLRA are applied to the factual circumstances in discrete cases.
Most of the courts of appeals to have considered NLRB deference post-Loper Bright have rejected it and instead emphasize the importance of de novo “independent” judgment. This development takes seriously Loper Bright’s broader consideration of how deference—at least on legal questions—stands in tension with judges’ Article III commitments.
Pins and Shirts and Alleged Unfair Labor Practices
Siren Retail arose from the NLRB’s determination that Starbucks committed unfair labor practices by mandating a uniform code that limited employees from wearing certain buttons, pins, or unapproved shirts. The policy was applied in one of Starbucks’s upscale New York City “Reserve Roasteries.” After an employee union filed a complaint, the Board initiated administrative proceedings and an administrative law judge sided with Starbucks, based on its reading of the Second Circuit’s opinion in NLRB v. Starbucks Corp. and the NLRB’s own precedent, Tesla, Inc. The Board reversed.
“Unfettered Authority” to Interpret the Law
Writing for a unanimous panel, Judge Walker rejected the Board’s position with respect to Starbucks’s “one-pin” policy but remanded the remainder of the case for re-application of the Tesla test under a proper understanding of relevant Supreme Court precedent, namely, Republic Aviation Corp. v. NLRB. In doing so, he clarified the Board was not entitled to any deference on legal questions, including proper interpretation of controlling precedents.
Before turning to the merits, it is worth highlighting Judge Walker’s discussion of the standard of review. After recognizing Loper Bright does “not disturb the nature of [a federal court’s] review of the NLRB’s factual findings,” which are evaluated under the 29 U.S.C. § 160’s “substantial evidence” standard, Judge Walker emphasized the Board’s “legal conclusions” must be subject to an independent judicial check. He explained (with my emphases):
[W]e may no longer defer to the opinions of the NLRB . . . . [W]hile the NLRB’s legal conclusions may no longer have the “‘power to control,’” as they did under Chevron, they may still have the “‘power to persuade.’” . . . Such persuasive force is not present, however, . . . [if] the Board misinterprets and misapplies the law. . . . We have unfettered authority under Loper Bright to analyze such questions de novo.
Although Judge Walker wrote of the “power to persuade” and, in omitted passages, referenced Skidmore, his opinion is not an endorsement of the approach adopted by the Ninth Circuit in Lopez v. Bondi. An agency’s legal conclusions cannot be the starting point for the court’s review, and those conclusions only have persuasive value so long as they represent a correct interpretation or application of the law. Everything bends to the court’s exercise of “unfettered” independent judgment in search of the best meaning of the law.
Judge Walker also recognized that, under Loper Bright, a “statute’s meaning may well be that the agency is authorized to exercise of degree of discretion,” which might trigger deferential review. And he similarly recognized the Supreme Court’s suggestion, in Beth Israel Hospital v. NLRB, that the Board enjoys “authority to formulate rules to fill the interstices of the [NLRA’s] broad statutory provisions.” But, as Loper Bright makes clear, courts enjoy “primary interpretive responsibility” for identifying and delimiting the boundaries of such delegations. In this respect, much like Judge Rao’s sentiments in Hospital Menonita, it seems unlikely the general policy goals animating the NLRA can function as an implied delegation of regulatory authority, at least in the absence of an express textual grounding.
It is also worth noting Judge Walker’s footnote on the continuing force of Hearst Publications. As he wrote, it is unsettled whether “some deference may still be owed to [an agency’s] reasonable application of the correct law to a particular set of facts.” Loper Bright admittedly suggested “due respect” to an agency is especially warranted when its interpretation rests on “factual premises within [its] expertise,” such as when “mixed questions” arise. But as I discussed here and here, the “notion that, absent an express delegation, the mere application of law to facts could somehow insulate an agency’s judgment from meaningful de novo review . . . is simply wrong.”
Back to the Percolating Question
Having articulated the proper standard of review for the Board’s legal opinions, Judge Walker turned to the Board’s conclusion that Starbucks committed unfair labor practices. On the question of Starbucks’s one-pin policy, the Circuit concluded the Board’s determination was foreclosed by NLRB v. Starbucks Corp., which the agency had misread and incorrectly distinguished given the facts of the present case.
Turning to the other dress-code policies, the Circuit concluded the Board’s adjudication relied on a misunderstanding of controlling Supreme Court precedent. In Tesla, the Board had moved from its earlier reasonable-balancing test for determining the validity of employer dress restrictions to a rebuttable presumption that mandatory uniform rules violate the NLRA. Yet Tesla “rest[ed] on erroneous legal foundations.” Despite the Board’s claim that the test was derived from the Supreme Court’s decision in Republic Aviation, that case “recognized that the right [of employees to display union insignia] is not absolute,” at least without evidence of discriminatory purpose. Since “the interpretation of Supreme Court precedent is a question of law that ‘falls under the special, if not unique, competence of courts,’” the Circuit owed no special deference for the Board’s position.
Conclusion
Siren Retail now returns to the NLRB with directions that the Board “apply a more evenly measured balancing test.” Interestingly, as others have noted, the Board’s General Counsel has called for the overruling of Tesla, Inc. As for the broader question of deference to the NLRB, the agency has filed a petition for rehearing en banc in Hospital Menonita. That petition relies heavily on Judge Randolph’s dissent, and the notion Loper Bright does not overturn earlier cases that held Congress delegated to the Board responsibility for “formulat[ing] rules to fill the interstices of the [NLRA’s] broad statutory provisions.” In the near term, all eyes are on the Supreme Court. The pending cert petition in PG Publishing, which challenges the Third Circuit’s decision in Alaris Health, has been distributed for the September 28th “long” conference. We may soon see the Supreme Court step into the fray to decide the future of NLRB deference.
Ryan P. Mulvey is senior policy counsel at Americans for Prosperity Foundation.
One of the more doctrinally vexing passages in Loper Bright Enterprises v. Raimondo is the Supreme Court’s admonition that, notwithstanding the significant doctrinal change caused by the overruling of Chevron, “holdings of those cases” previously decided under that interpretive framework would “still [be] subject to statutory stare decisis.” As Chief Justice Roberts explained, “[m]ere reliance on Chevron cannot substitute a ‘special justification’ for overruling” a prior holding, “because to say a precedent relied on Chevron is, at best ‘just an argument that the precedent was wrongly decided.’” These statements left much unanswered, and two years later, the lower courts continue to grapple with how to apply the principle of stare decisis to Chevron Step-Two precedents. The Fourth Circuit’s recent decision in Yanez Piedra v. Blanche provides an interesting illustration of how one court has sought to resolve such questions while simultaneously highlighting various possible interpretations of the Supreme Court’s instructions.
Background
The Immigration and Nationality Act (“INA”) provides that, subject to limited exceptions, aliens who admit to or are “convicted of” certain offenses—namely, crimes involving moral turpitude or controlled substances—shall be ineligible for admission to the United States. Implementation of that provision seems like it should be straightforward enough. But what happens if an alien’s conviction is vacated? Is that alien still inadmissible?
Ms. Yanez Piedra is a Mexican national who, shortly after becoming a lawful permanent resident, was convicted of forgery and possession of marijuana in a North Carolina state court. After completing her non-custodial sentences, she travelled to Mexico and was denied readmission to the United States based on her prior state-law conviction. After conceding inadmissibility and seeking a waiver in immigration court, Ms. Yanez successfully petitioned a North Carolina judge to vacate her marijuana conviction. Armed with that vacatur, she moved the Board of Immigration Appeals (“BIA”) to reconsider her case.
BIA denied Mr. Yanez Piedra’s request, relying on its own precedent, In re Pickering, a 2003 case that established a framework for determining when vacated convictions have “immigration effect.” Under Pickering, a conviction vacated due to a “procedural or substantive defect in the underlying proceedings” can no longer be used to deny admission to an alien, but a conviction vacated for other reasons, “such as rehabilitation or immigration hardships,” is still a qualifying ground for purposes of 8 U.S.C. § 1182(a)(2)(A)(i). BIA justified this varied approach based, among other things, on the First Circuit’s interpretation of that provision, which attended to the “emphasis that Congress placed on the original admission of guilt.” Such guilt is hardly vitiated by the quashing of a conviction, at least for reasons unrelated to the merits or other defects in the underlying criminal process.
Judge Richardson’s Opinion
In an opinion authored by Judge Julius Richardson, the Fourth Circuit sided with Ms. Yanez Piedra and rejected BIA’s “reason-for-vacatur” framework as inconsistent with the “best reading” of the INA. The Court addressed at least two issues worth exploring here.
First, it rejected the agency’s request for deferential treatment based on earlier circuit application of the Pickering framework—a sort of stare decisis argument. In Phan v. Holder, another Fourth Circuit panel had agreed to apply Pickering in a case involving USCIS and its denial of an application for naturalization under 8 U.S.C. § 1101(f)(8). The Phan court noted, at the time, that Pickering enjoyed “broad support” in other jurisdictions. Yet Judge Richardson made clear Phan was not binding, especially in the present case, which dealt with a “materially different statute and a different set of facts involving a different agency.”
Second, turning to the plain meaning of Section 1182, the Court proposed two possible readings of the phrase “any alien convicted.” It could alternatively be understood to refer to “any alien who currently stands convicted” of an offense—what the Court termed the “legal-status reading”—or “any alien who at any time has been convicted”—the “historical-fact reading.” The former approach was deemed best:
[T]he term “convicted” is acting as a past particle. Consider how other past participles—like “married,” “licensed,” or “employed”—might be understood in various contexts. . . . In each example, the text and context . . . suggest that the relevant characteristic must currently apply.
This common-sense reading was supported by other considerations, such as statutory context and “background legal principles.” For example, the Court noted the Supreme Court has articulated an important “presumption,” namely, “that vacated court orders are void ab initio and thus lack any prospective legal effect.” Once a conviction is vacated, regardless of the reasons for that vacatur, the formerly convicted person is no longer “convicted of” anything. The government’s attempts to divert the Court’s attention with some “special federal usage” of “conviction” were unpersuasive, having no basis in historical practice let alone the statutory definition of that term.
Given that Section 1182, on its best reading, refers to an alien who currently stands convicted, the Pickering framework makes little sense. It did not matter whether “most federal circuits have adopted” it. As the Court explained, “after Loper Bright, our job is neither to count judicial noses nor to defer to an agency’s statutory interpretation.” Thus, regardless of the policy justifications for Pickering, the statutory text controlled and did not leave room for any inquiry to the “motive” driving any court’s decision to vacate a conviction.
Footnote Three of the Panel Opinion
Again, Judge Richardson rejected the government’s attempted stare decisis argument, which relied on earlier circuit application of Pickering. Although he distinguished that earlier precedent on various grounds—a different agency, a different provision of the INA, and a different set of factual circumstances—he provided an interesting aside in a footnote, in which he identified some of the most pressing open questions vis-à-vis Loper Bright’s reference to statutory stare decisis and the fate of cases previously decided at Chevron Step Two.
We could read the Court’s instructions in one of several ways. First, we might give precedential effect broadly to the reasoning underlying a decision that relied on Chevron. Under this view, if a prior decision found reasonable an agency’s interpretation of a statute, we would be bound to continue applying that interpretation. Second, we might give precedential effect to an earlier Chevron decision only as it applies to the specific agency action in question. So a Chevron decision within an agency adjudication would bind us within only that adjudication. But there’s a third potential reading. The Supreme Court suggested that the holdings of earlier cases that relied on Chevron “are still subject to statutory stare decisis.” . . . Our Court is not normally in the business of applying the Supreme Court’s stare decisis factors—instead applying the strict rule of panel precedent. But perhaps we should take the Supreme Court at its word and begin applying stare decisis factors to cases that relied on Chevron.
The first two of Judge Richardson’s points highlight a scoping problem with Loper Bright’s directions on stare decisis. As my colleague, Michael Pepson, and I have explained, it is unclear whether the Supreme Court is “refer[ring] to specific agency decisions upheld under Chevron or, alternatively, legal interpretations upheld under Chevron.” Put differently, one could treat statutory stare decisis as either “travel[ing] with the specific agency decision that was under challenge” in any past case or the “interpretation . . . used to justify the same decision.” The former approach, as Judge Richardson notes, is broader and could insulate a wider range of Chevron Step Two cases from reevaluation. The last point raises a separate but related question. Assuming Loper Bright’s discussion of stare decisis applies beyond the Supreme Court’s own Chevron-era decisions to circuit precedent—which is itself an open question—what is the appropriate standard for overturning those cases? For example, must panel decisions still be expressly overruled en banc, or does Loper Bright contemplate direct reevaluation at the panel level according to the Supreme Court’s stare decisis factors?
Conclusion – Is Clarification Forthcoming?
Judge Richardson’s observations build on concerns previously identified by other jurists. Judge Bumatay on the Ninth Circuit, for example, expressed similar concerns about the ambiguity in Loper Bright’s instructions on stare decisis roughly a year ago in Lopez v. Bondi. And courts and scholars have continued to reach different conclusions, as described here, here, and here. Thus far, stare decisis has yet to come to the Supreme Court, although the Court had the opportunity to provide clarification in Tennessee v. Kennedy. Unfortunately, the Court ended up granting, vacating, and remanding the petition at the request of the parties. Supreme Court intervention, though, seems inevitable.
Ryan P. Mulvey is senior policy counsel at Americans for Prosperity Foundation.
Catholic University Law School Professor and Director of the Separation of Powers Institute Chad Squitieri discusses Skidmore v. Swift & Co., including its status after Loper Bright Enterprises v. Raimondo, with University of Minnesota Law Professor Kristin Hickman.
Last month, Americans for Prosperity Foundation (“AFPF”) hosted a special summit marking the two-year anniversary of the Supreme Court’s momentous decision in Loper Bright Enterprises v. Raimondo. The event was well attended, and registrants spent a half-day listening to experts explore how Loper Bright is driving the Trump Administration’s regulatory agenda and giving Congress the opportunity to reassert its Article I authority and rethink its relationship with the administrative state. While most public debate about Loper Bright understandably has focused on developments within the judiciary, AFPF’s summit underscores how the decision has proven more immediately transformative outside the courts, as political actors—legislators and regulators, alike—adjust to a world without Chevron deference.
Loper Bright Through the Eyes of a Senator
By John J. Vecchione
Ryan Mulvey has ably discussed the implications of the history and holding of Hospital Menonita de Guayanma v. NLRB in these pages. To sum up, the NLRB had a successor-bar rule requiring that an employer deal with a union for a year after taking over the company based on an irrebuttable presumption it had majority-employee support until at least a year after the successor took over. The D.C. Circuit had previously given deference to the NLRB’s rule even though there was evidence that union support had dropped below a majority. It is of special consequence that the case was remanded to the D.C. Circuit in light of the holding in Loper Bright. The issue seemed to be whether the opinion would come out the same if no deference was given to the NLRB.
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In Environmental Defense Fund v. EPA, the D.C. Circuit recently flagged an interesting impact Loper Bright might have on administrative law. Judge Henderson’s opinion suggests the possibility that, after Loper Bright, the Chenery doctrine—which holds that “reviewing courts ‘must judge the propriety of [agency] action solely by the grounds invoked by the agency’”—may not apply to “pure statutory interpretation questions.” This question matters because in challenges to agency decisions like federal regulations and adjudications, to the extent the Chenery doctrine applies it limits the grounds on which a court may uphold the agency action. So, if this doctrine does not apply to statutory interpretation questions post-Loper Bright, agency decisions that match what a law is best understood to mean can be upheld on that basis in certain circumstances, even if the agency gave different reasons for its decision at the time.
(more…)Earlier this spring, in Rutherford v. United States, the Supreme Court held the U.S. Sentencing Commission’s interpretation of 18 U.S.C. § 3582(c)(1) was inconsistent with the underlying statutory text, and that nonretroactive changes in sentencing law could not qualify as “extraordinary and compelling reasons” to justify early release. That decision, and its explanation of the principles that limit the Commission’s delegated authority, accentuates how Loper Bright v. Raimondo now binds every agency—including the Commission.
In her opinion for the majority, Justice Barrett cited Loper Bright when describing how the Commission could indeed give meaning to a statute in its Sentencing Guidelines, so long as its policy statements land within boundaries established by Congress, as discerned by the courts. In the upcoming Term, in Beaird v. United States, the Court will take the proverbial next step by deciding whether so-called “Stinson deference” to the Commission’s commentary on its Guidelines—used to calculate sentences for federal crimes—can or should survive at all.
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In the wake of Loper Bright and the end of Chevron deference, commentators have wondered whether the Supreme Court’s definitive interpretation of Section 706 could spell the end of other deference doctrines, including those that have developed outside the context of the APA. One conspicuous body of caselaw under suspicion involves deference to the National Labor Relations Board (“NLRB”) and its interpretations of the National Labor Relations Act (“NLRA”).
The D.C. Circuit’s decision last week in Hospital Menonita de Guayama, Inc. v. NLRB may not end the debate over NLRB deference, but it meaningfully shifts its terms. Drawing on Loper Bright and its conception of the Article III judicial function, the Hospital Menonita majority held that courts have an independent obligation to determine the scope of the NLRB’s statutory authority. This is a major development with serious consequences for deference doctrines that implicate independent regulatory agencies, and the ability of those agencies to repackage such deference doctrines as statute-specific delegations under Loper Bright.
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Professor John Meisel’s recent post at the Yale Journal on Regulation’s Notice & Comment blog offers a fascinating framework for understanding how the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo creates an incentive for Congress to avoid “statutory vagueness” and “draft more precise statutes.” Meisel characterizes the Court’s decision as establishing a “penalty default rule” and makes several predictions for how that “rule” might operate. Those predictions are largely persuasive, but whether they bear out has yet to be seen, and there are some grounds to push back against what I sense to be Meisel’s unspoken pessimism.
A penalty-default rule is an interpretive concept drawn from the law of contracts. It effectively directs a reviewing court to penalize at least one of the parties to a contract when filling any “gaps” in their agreement. The idea behind the rule is that any threat of disfavored treatment will motivate the parties to do a better job setting forth the terms of their agreement on the front end. Meisel explains how this “rule” applies in the Loper Bright administrative-law context:
Loper Bright and Political Accountability
I appreciate Meisel’s characterization of Loper Bright’s implications for Congress, as well as the Court’s interest in restoring a more traditional conception of the separation of powers. I recently wrote a piece critiquing a report published by the Center for Progressive Reform that attempted to cast Loper Bright as the product of an “anti-democratic” “juristocratic regime” that seeks to “reinforce existing power disparities.” In responding to that incredulous claim, I hinted at the very dynamics underlying Meisel’s framing:
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—allows our representatives to assume responsibility for legislating, rather than shifting that role to unelected bureaucrats.
To be sure, Loper Bright’s penalty-default rule will entail costs, especially for the legislative branch, if it is to respond honestly to the Court’s incentive. Congress will need to be more specific when drafting statutes. This doesn’t necessarily mean that Congress will write more detailed laws, in the sense of regulating minutiae, especially in highly technical or scientific contexts. Congress can just as easily be clearer about its delegations of discretionary regulatory authority to administrative agencies. Either approach, however, entails limiting statutory ambiguity.
Agency Practice in the Wake of Loper Bright
So, what should happen if Meisel’s penalty-default theory holds true? He makes four predictions. First, he argues that, on the agency side, we should see regulators “invest more heavily in statutory analysis and litigation defense.” To a certain extent, this has already happened. My piece in RealClear Policy last month explored how Loper Bright has transformed the executive branch’s approach to rulemaking and, specifically, regulatory reform. The notion that all regulations must reflect the “best reading of the underlying statutory authority or prohibition,” for example, is now formalized in Executive Order 14219.
At the same time, agencies don’t seem to have embraced greater “procedural formality,” as Meisel also predicts. Indeed, quite the opposite. The White House Office of Information and Regulatory Affairs (“OIRA”), for example, issued a memo last year reinforcing an earlier presidential memo directing agencies to invoke the APA’s “good cause” exception to bypass notice-and-comment processes. In the long term, though, it is still a safe assumption that agencies will provide more detailed bases for their regulatory actions, which are likely, in any event, to skew conservative in terms of their underlying presumptions about the scope of agency authority. I discussed that expectation earlier this year when I reviewed a draft report (now finalized) prepared for the Administrative Conference of the United States:
Professor Deacon notes several [agency] drafters believed it “increasingly important” to “identify specific delegations,” as opposed to relying on general grants of regulatory authority. Agency drafters also appeared to appreciate the importance of “leading with textualism’s traditional tools” before expounding on purposive or policy-based arguments. Finally, experts “differed” somewhat on whether to frame agency interpretations “in terms of Skidmore’s factors or in reference to Loper Bright’s occasional nods towards agencies’ expertise.”
Loper Bright’s Potential Impact on Courts
Meisel’s third prediction is that “litigation itself may become a substitute regulatory instrument.” It is not clear to me why Loper Bright would cause “more judicial involvement in regulatory policymaking,” as opposed to a different kind of engagement. Although Loper Bright represents a paradigm shift in the standard of judicial review for APA cases, it has hardly opened the floodgates to litigation. Nor has it proven to be an invitation for judges to insert themselves—as if they were able to do so sua sponte—into discretionary policymaking. This is certainly the case where there is clear delegation of broad regulatory authority. In any event, with some notable exceptions, even the Administration’s efforts to leverage Loper Bright as part of its deregulatory agenda has not resulted in a massive uptick in cases challenging regulations, as opposed to subregulatory policies or practices or discrete enforcement actions. Whether Meisel’s prediction materializes at some later date is possible, of course, but even then, if disagreements about the meaning of the law arise with some new regulation, it is the province of the judiciary to resolve those disputes, not the agency.
The Big Question: How Does Congress Respond?
Finally, Meisel suggests that Loper Bright’s penalty-default rule may lead to “congressional adaptation” that is “selective rather than comprehensive.” In other words, while Congress could “provide more detailed statutory instructions” in certain “highly salient” areas, it may otherwise be hindered by “existing political constraints” and fail to live up to the Court’s expectations. The determining factor, Meisel argues further, is whether congressional decision-makers decide to build “legislative capacity” and push to reform internal “doctrines” and procedures.
Overall, this prediction seems right. As Susan Dudley, the former OIRA administrator has argued, “Congress itself needs more resources” to respond effectively in a post-Chevron landscape. And it is not just a question of financial resources. Congress should retain subject-matter experts to make committees “sources of knowledge and deliberation,” especially in highly technical areas. There also needs to be an improvement in legal expertise; legislative counsel should be able to anticipate how judges, under Loper Bright, will interpret the meaning of any given statute. Avoiding ambiguity or being more comprehensive is only the beginning—drafting quality should be the overarching priority.
Turning to other procedural or cultural adaptations that may be necessary to reach comprehensive congressional engagement, Senator Eric Schmitt’s Post-Chevron Working Group Report lays out a rather detailed plan for how Congress can pursue short-, medium- and long-term structural reforms that will, ultimately, lead to something more substantial than the piecemeal “adaption” that Meisel fears. Even among progressives, some have proposed that the end of Chevron deference presents a “political opportunity” that will lead to widespread agreement about the advantages of Congress taking its role under Article I seriously once more.
Conclusion
Professor Meisel’s penalty-default framing captures something intuitively correct about Loper Bright’s constitutional logic. Yet Meisel seems to imply quite subtly that the burden the Court has placed on Congress is something to be regretted or at least managed. I am more optimistic. In my mind, the penalty of statutory ambiguity is really the ordinary work of legislating, and something that Congress should always have sought to avoid. If Loper Bright nudges Congress to draft more carefully, delegate clearly, and invest in its own capacity to do both, that is not a bug in the decision. It is the driving force of its message on the separation of powers. Loper Bright is a step towards restoring a healthier constitutional equilibrium. That is worth defending on its own terms.
Ryan P. Mulvey is senior policy counsel at Americans for Prosperity Foundation.
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.
