Can There Still Be “Implicit Delegation After Loper Bright”? 

As highlighted last week, Liberty University Law Review recently published a special issue containing essays submitted as part of its symposium on Loper Bright.  But there is other recent scholarship on Loper Bright worth highlighting.  One article in particular—“The Gray Area: Finding Implicit Delegation to Agencies After Loper Bright,” by Harvard Law professor Matthew Stephenson—deserves serious engagement.

From the abstract:

In Loper Bright v. Raimondo, the Supreme Court overruled Chevron v. Natural Resources Defense Council and repudiated Chevron’s across-the-board presumption that statutory ambiguities should be treated as implied delegations of discretion to agencies.  But Loper Bright did not repudiate the possibility that a court might properly find implied delegation in some cases.  How should a court identify such cases?  Loper Bright did not offer much guidance.  In the coming years, a central project of administrative law will be articulating, elaborating, and refining the doctrine that is to govern this inquiry.

This Article argues that the canonical pre-Chevron cases Gray v. Powell and NLRB v. Hearst Publications, Inc. together with their antecedents and progeny, provide a useful framework for distinguishing those interpretive questions on which courts ought to find implicit delegations to agencies from those issues that are for the courts to decide without deference.  The Gray doctrine establishes a presumption that, when a statute empowers an agency to take some authoritative action which necessarily involves the application of an imprecise statutory term to particular situations, the statute should be read as implicitly delegating to the agency the authority to make the necessary line-drawing decisions.  At the same time, the Gray doctrine does not call for judicial deference to an agency’s views on the resolution of interpretive questions that can be answered through abstract textual or structural analysis.

Courts can and should incorporate the Gray doctrine into the implicit delegation prong of the Loper Bright framework.  Doing so would be both legal—consistent with the Administrative Procedure Act as interpreted by Loper Bright—and desirable.  The Gray doctrine provides a structured, workable method—one well-grounded in decades of pre-Chevron case law—for deciding when a finding of implicit delegation is appropriate.  Integrating Gray into Loper Bright would achieve a more appropriate allocation of authority between the judicial and executive branches than would alternative and more restrictive approaches to Loper Bright’s implicit delegation prong.

Professor Stephenson has published a shorter essay summarizing his argument on the Yale Journal on Regulation’s “Notice & Comment” blog.  Notably, this essay provides a condensation of the professor’s plan for how judicial review should proceed under his proposed Loper Bright/Gray paradigm.  Assuming a court is not faced with either an “express delegation” or a “pure or abstract question[] of law,” it must determine if Congress’s “use of an imprecise term constitutes an implied delegation of line-drawing authority to the agency.”  Professor Stephenson continues:

[T]he court should typically decline to find such an implied delegation if the agency has announced its view in a non-binding statement that was not issued pursuant to relatively formal procedures (such as a notice-and-comment rulemaking or a formal hearing), or if the line-drawing before the court is of such extraordinary significance that it is inconceivable that Congress lacked a specific intent.  In these circumstances, then the court must decide for itself whether the agency’s line-drawing decision is correct.  But if none of those limits applies, the court should treat the statutory imprecision as an implicit delegation to the agency and . . . uphold the agency’s line-drawing decision as long as that decision is reasonable.

This formidable and well-cited article is worth studying in detail.  At present, I offer a few preliminary observations to push back on Stephenson’s overarching thesis.

Loper Bright Delegations Require an Express Textual Basis

I remain unconvinced that Loper Bright is as ambiguous as Professor Stephenson claims with respect to the viability of “implied” delegations post-Chevron.  The underlying theory of Chevron was that statutory ambiguity could function as an implied delegation of regulatory authority, and not merely as a matter of presumption.  Justice Stevens was clear on this front.  On his view, proper implementation of the law sometimes required the “formulation of policy” to “fill . . . gap[s] left, implicitly or explicitly, by Congress.”  And administrative agencies were responsible for carrying out that gap-filling function.  Justice Thomas recognized the same—albeit from a critical stand-point—in his concurrence in Michigan v. EPA: Under Chevron, “[s]tatutory ambiguity . . . becomes an implicit delegation of rule-making authority . . . to formulate legally binding rules to fill in gaps based on policy judgments made by the agency rather than Congress.”

Yet the Loper Bright court wholly rejected the theoretical underpinnings of Chevron, including the proposition that statutory ambiguities function, in fact, as delegations of gap-filling authority.  Indeed, as the Chief Justice wrote, “statutory ambiguity . . . is not a reliable indicator of actual delegations of discretionary authority to agencies,” and the “very point of the traditional tools of statutory construction . . . is to resolve [such] statutory ambiguities,” including “when the ambiguity is about the scope of an agency own power.”  It would undercut the force of Loper Bright for judges to be able to dodge important interpretive questions merely by pointing to a delegation ostensibly implicit in the law.  And, while somewhat aside here, the problems inherent in drawing implied delegations out of statutory “silence,” rather than Congress’s imprecise terms, are even more pronounced. Stephenson’s attempt to revive the Gray doctrine as part of Loper Bright would reintroduce the ambiguity-as-delegation logic that the Court rightly rejected.  Deference should only be permissible when Congress has expressly conferred discretion to an agency or explicitly limited judicial review.

I am not alone in my thinking.  In Moctezuma-Reyes v. Garland (2024), Judge Thapar of the Sixth Circuit, made a compelling case for why “Loper delegations”—to borrow a phrase coined by Professor Adrian Vermeule—still require an express textual basis:

[T]he Supreme Court has instructed us that occasionally the best reading of a particular statute will reveal that Congress expressly and explicitly delegated discretion to the agency[.] . . .  For example, Congress may say that the agency can regulate in accordance with broad, flexible standards like “appropriate” and “reasonable” only when the agency “finds” those standards have been met of it in its “judgment” those standards have been satisfied.  This sort of express language conferring discretion on the agency is critical: If broad language alone triggered deference, we’d unwittingly return to construing less than precise words as implicit delegations to the agency that warrant deference. . . .  That can’t be right.  The case that declared “Chevron is overruled” didn’t quietly reinstitute it.

Put differently, capacious terminology on its own cannot be enough to justify the existence of a delegation, and courts may no longer presume that those broad terms convey additional discretionary authority to “flesh out” out their meaning.  Courts must instead rely on “express” language that “confer[s] discretion on the agency to interpret [these] broad standard[s].”  In this respect, Judge Thapar noted how “the actual statutes that Loper Bright cited as examples of delegations” were all “pair[ed] . . . [with] words that expressly empower the agency to exercise judgment” or define a legal standard.

Is There Even a Coherent Gray Doctrine?

I would push back on the notion that Gray v. Powell and Hearst v. NLRB even need to be reconciled with Loper Bright.  It could be that Stephenson, like Justice Kagan in her Loper Bright dissent, is trying to argue for discontinuity or conflict where none exists in any doctrinally meaningful way.  Even before the enactment of the APA, the Supreme Court was inconsistent with how it approached judicial review, especially in cases presenting mixed questions of law-and-fact.  Gray and Hearst could simply be “anomalies.”  It may be difficult, then, to speak in any monolithic way about a “Gray doctrine,” except as constituted and clarified by Stephenson.

More importantly, as noted in Loper Bright, both Gray and Hearst involved statutes—the Bituminous Coal Act of 1937 and the National Labor Relations Act, respectively—where courts had concluded Congress “delegated” authority to agencies to make fact-bound determinations applying broad statutory terms to concrete situations in an (often adversarial) adjudicatory context.  The same goes for Loper Bright’s reference to cases where an agency’s interpretation might depend on “factual premises within its expertise.”  These cases arguably involve some kind of express delegation by which agencies, in Professor Stephenson’s words, have been given the power to “sort cases into (and out of) some legally significant category.”  (I briefly addressed this last year in my analysis of the D.C. Circuit’s decision in American Gas Association v. Department of Energy.)

Capacious Terms Can Act as Express Delegations

It seems incorrect to read statutes that permit an agency to “regulate subject to the limits imposed by a term or phrase that ‘leaves agencies with flexibility’” as involving any kind of implied delegation.  Yet this category error pervades Professor Stephenson’s article.  At the least, broad language hardly implies a delegation in the same way as statutory silence or textual ambiguity under Chevron—and he appears to acknowledge as much.  As Justice Kavanaugh has explained, Congress can use “broad and open-ended terms” to give agencies flexibility to “choose among reasonable options.”  But these are examples of express delegations. 

Consider capacious words like “reasonable” or “appropriate,” which were used as examples in Loper Bright.  These words have a judicially discernable “best” meaning that per se provide an agency with flexibility to choose between lawful regulatory alternatives within what Justice Kavanaugh has elsewhere called the “zone of reasonableness.”  The job of a reviewing court, in these situations, is limited to ensuring the boundaries of the agency’s delegated authority are constitutional and clearly demarcated, and that the agency stays within those lanes, subject to standard arbitrary-and-capricious review.

The Court’s decision last year in Seven County Infrastructure Coalition v. Eagle County is a fine example of how this works in practice.  Seven County concerned the scope of federal agencies’ obligations under the National Environmental Policy Act to study the environmental effects of proposed agency actions and to prepare “detailed” reports on those effects.  As my colleague, Michael Pepson, and I explain in our recently published article on Loper Bright:

In his opinion for the majority, Justice Kavanaugh emphasized that NEPA, which is a “purely procedural statute,” “simply requires an agency to prepare an [EIS]” but otherwise imposes no “substantive roadblock” to “infrastructure projects . . . built, funded, or approved by the [f]ederal [g]overnment.”  When a party challenges the legal adequacy of an EIS, a court does not undertake de novo review but instead limits itself to asking whether the EIS “was reasonable and reasonably explained.”  In doing so, the court must “afford substantial deference to the agency.”

[. . .]

In other words, while the meaning of a statutory term—such as “detailed” in NEPA—remains a legal question left to the independent, best judgment of a court [under Loper Bright], disputes over what kinds of details are actually included in any given EIS must be left to the agency’s discretion, assuming the agency has otherwise acted within the bounds of its authority.  The inclusion or omission of particular “details” is a fact-bound matter that does not depend on the legal meaning of any statutory term.

Professor Stephenson, for his part, insists that Seven County is better read to involve the kind of “implied” delegation he would have courts uphold under Gray and its progeny.  But his arguments are not persuasive.  To start, it is unclear how the preparation of an EIS might involve the same sort of legal line-drawing implicated in cases presenting mixed questions of law-and-fact.  Although Stephenson suggests the “relevant legal question” in Seven County ought to have been whether “the contents [of an EIS] meet the statutory requirement that an EIS be ‘detailed,’” Justice Kavanaugh saw it otherwise.  For him, the question presented was whether a particular “detail” has been properly included (or omitted) from an EIS given that the relevance of that detail to reasonably foreseeable environment effects, feasible alternatives, and other factors set out in the law.  The Seven County court’s reference to Baltimore Gas deference for factual determinations involving an agency’s “predictive and scientific” judgments buttresses this conclusion—and yet Stephenson does not engage on that front.  Finally, while Stephenson questions whether Seven County can be reconciled with Judge Thapar’s opinion in Moctezuma-Reyes v. Garland, he ignores the express design of 42 U.S.C. § 4332, which “authorizes and directs” agencies to “include . . . a detailed” EIS in certain instances.  To be sure, this language hardly delegates interpretive authority to an agency to spell-out the meaning of “detailed,” but it does give the agency the power to exercise a level of expert judgment in preparing an EIS—which is enough to have triggered a more deferential level of review, especially in the context of a purely procedural statute.

Conclusion

Professor Stephenon’s article is worthy of close consideration.  Although I disagree with his claim that an “inherently imprecise” statutory term can constitute an “implied delegation of line-drawing authority” on its own—or that normal tools of statutory construction aren’t sufficient to resolve questions of legal meaning when tied up with “factbound line-drawing”—he is right that the Loper Bright court could have done more to clarify whether such implied delegations survive the end of Chevron deference.  Chief Justice Roberts could also have been more careful in his analysis of Gray, Hearst, and the fate of mixed questions of law-and-fact, which are indeed “problematic” in various ways, as Stephenson notes.  There was a chance that issue could have been addressed in Urias-Orellana v. Bondi, but the Court dodged the de novo question for mixed questions after concluding Congress had statutorily mandated deferential review of orders of removal.  In the meantime, courts should not be in the business of reintroducing such deference by relying on pre-APA precedents like Gray and theories of implied delegation that risk reintroducing the problems that Chevron perpetuated for forty years.

Ryan P. Mulvey is Senior Policy Counsel at Americans for Prosperity Foundation.  In his role at Cause of Action Institute, Ryan has served as lead counsel on Loper Bright Enterprises v. Raimondo since the initiation of the case.