Does Brand X Survive Loper Bright For Express Delegations? 

In U.S. v. Bricker, the Sixth Circuit grappled with whether the Sentencing Commission could use a policy statement to expand the scope of the federal compassionate release statute, which authorizes early release for “extraordinary and compelling reasons,” to cover nonretroactive changes in sentencing law, when the en banc Sixth Circuit previously reached the opposite conclusion. In other words, can a federal agency use Brand X to overrule a federal court decision after Loper Bright?  

The U.S. Sentencing Commission’s Special Status 

The U.S. Sentencing Commission is a unique administrative body tasked with implementing federal sentencing law. It is a judicial branch agency that is said to exercise “quasi-legislative” power, and its existence raises serious constitutional concerns. Among other things, Congress tasked the Commission with issuing policy statements that “describe what should be considered extraordinary and compelling reasons for sentence reduction” under the compassionate release statute. In 2018, Congress passed the First Step Act, reducing the sentences for certain crimes—but without making those changes retroactive. Before the Commission issued a policy statement on those changes, some inmates convicted of those crimes long before the FSA—who, as a result, received harsher sentences—sought compassionate relief arguing the changes were “extraordinary and compelling reasons” justifying early release. In 2022, in U.S. v. McCall the Sixth Circuit ruled that “[n]onretroactive legal developments do not factor into the extraordinary and compelling analysis. Full stop.”  

Then, in 2023, the Commission issued a policy statement determining that Congress’s nonretroactive changes in sentencing law reducing the penalties for certain crimes could nonetheless provide grounds for early release for older inmates. Writing for the panel majority, Judge Batchelder, joined by Judge Readler, described Commission’s action as “understandable and even laudable.” But the question before the Court was not whether the Commission’s expansion of compassionate release was wise public policy; it was whether the Commission had the constitutional and statutory authority to do that. As Judge Batchelder put it, “the questions in this appeal concern the separation of powers, specifically the Commission’s power to overrule a Circuit Court’s interpretation of a statute or to promulgate a policy statement that contradicts other federal statutes.” For the majority on the divided panel, the answer was no.

The Viability of Brand X 

This case raises a number of interesting separation of powers and statutory interpretation questions. One of those is whether the Supreme Court’s decision in Brand X—which expanded Chevron deference to empower federal agencies to effectively overrule federal court decisions in certain circumstances—survived the Court’s decision in Loper Bright.

After Loper Bright, “[c]ourts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires” and “need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.” But at the same time, in Loper Bright the Court recognized that “[i]n a case involving an agency, of course, the statute’s meaning may well be that the agency is authorized to exercise a degree of discretion.” And “when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it.”  

Bricker Majority Finds Express Delegation Not Enough to Revive Deference  

In Bricker, the majority parted ways with the dissent on how to apply Loper Bright’s core teachings. As the panel majority saw it, “the issue is whether the Sentencing Commission can overrule the Sixth Circuit in this scenario,” and notwithstanding Congress’s express delegation of discretion to the Commission, “once a court has interpreted the bounds of the Commission’s delegated authority as [the Sixth Circuit] did in McCall, the Commission does not have the authority to overrule that interpretation.” This means that “even with an express delegation of authority, the Commission does not have limitless power to define ‘extraordinary and compelling’ to mean what it plainly does not allow, which . . . includes nonretroactive changes in law.” As the majority explained, the idea that after Loper Bright courts must not defer to agencies’ interpretations of ambiguous statutes “extends to express delegations of authority, which are simply a difference in degree, not kind, from implicit delegations based on a law’s silence or ambiguity.” And “[t]herefore, Loper Bright negates the prisoners’ argument that . . . [the Commission’s policy statement] overrules McCall because courts must defer to an agency’s interpretation of what they view to be an ambiguous phrase, ‘extraordinary and compelling.’” 

Judge Stranch’s Bricker Dissent Attempts to Give Brand X New Life 

The dissent suggested a broader disagreement on both the meaning of Loper Bright and the continuing vitality of Brand X.  Judge Stranch contended that “[t]he legal rule announced in Chevron and eliminated in Loper Bright was not a change in either the degree of deference given to agencies, or the degree of statutory ambiguity required for deference to be given.” For the dissent, “while Loper Bright overruled Chevron, and significantly reduced the deference given to agencies in the implied delegation context, it did not purport to disturb pre-Chevron law for express delegation.” Even in the wake of Loper Bright, the dissent argued, “[i]n the realm of express delegation, agencies are still entitled to significant deference[.]”  

Moreover, in the dissent’s view, Brand X remains good law for express delegations. The dissent took the position that in the context of express delegations, “[w]here . . . prior precedent shows that the text is ambiguous, or resorts to reaching back into the toolbox for other interpretive tools beyond the text, Brand X teaches that such precedent cannot control the validity of a later agency construction of that same text.” Citing Brand X, the dissent concluded that “in the express delegation context, where the agency is the primary interpreter of the text, an agency interpretation may be binding even in the face of a prior judicial decision that interpreted the meaning of the statute but could only do so based on tools beyond the text.” Although the dissent acknowledged McCall’s holding, it nonetheless concluded that McCall did not control because, in the dissent’s view, it didn’t hold that “the plain text of the statute unambiguously foreclosed a contrary reading.” 

But does Brand X even have any life left after Loper Bright? Although Loper Bright did not squarely overrule Brand X—or, for that matter, City of Arlington v. FCC, which allowed agencies to demand that courts grant Chevron deference to their views on the scope of their jurisdiction—there is good reason to think that Loper Bright necessarily interred those misguided decisions as well. After all, the Brand X Court itself said that the “principle” that decision announced “follows from Chevron itself.” And Loper Bright overruled Chevron.   

More broadly, under Loper Bright, where a statute expressly delegates discretion to an agency, courts must independently determine whether that delegation is constitutional and, if so, “fix[] the boundaries of the delegated authority” without deferring to the agency’s claims about what the law means. Then, so long as the agency is acting within those boundaries—again, a determination the court must independently make without deference—the court must ensure that the agency exercised its discretion in a reasonable way and that its decision was not arbitrary and capricious. But recognizing an agency’s reasonable exercise of discretion to do what Congress expressly statutorily tasked it with doing is not deference at all. Discretion and deference are two very different things in this context: agency discretion continues to exist after Loper Bright, deference to agency statutory interpretations does not. This holds true for both express and implied delegations. It would follow from this that after Loper Bright, where, as in McCall, a court has said what the law is—i.e., independently set the boundaries of the delegated discretion—an agency may not then overrule the court’s decision setting the metes and bounds of the agency’s underlying discretion. 

Conclusion 

It will be interesting to see how other courts understand Brand X post-Loper Bright and whether the Supreme Court needs to revisit that misguided decision and put a formal tombstone on it that cannot be missed or, alternatively, if courts will simply ghost Brand X into oblivion.