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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.
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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.
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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.
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In Loper Bright v. Raimondo, the Supreme Court overturned Chevron deference, ending forty years of courts deferring to agency statutory interpretations. Now, the duty of saying what the law is has returned to where it belongs: the courts.
Two years later, federal agencies are quickly rewriting the regulatory landscape, reconsidering many old regulatory interpretations that heavily relied on deference. At the same time, a series of executive orders from President Trump have demanded a thorough review across the government to combat overreach. We are now tracking the result of all these moves in one place.
