Legislative Drafter’s Guide to Deference, Delegation, and Discretion after Loper Bright

Following the Supreme Court decision in Loper Bright v. Raimondo, which overturned the Chevron doctrine granting federal agencies broad deference to interpret statutes, a “Post-Chevron Working Group” comprised of twenty Republican Senators began working to outline a proper legislative response to the decision and to define a “best practices” for future legislative action.  On June 5, 2025, the working group published a 150-page report outlining its findings and recommendations. 

Among the material presented, the working group included a section detailing a “Legislative Drafter’s Guide to Deference, Delegation, and Discretion.”  After discussing the meaning of deference, delegation, and discretion, and their relevance to the drafting of new legislation, the report included best practices. The goal of new legislation, the report concluded, should be to limit agency action to “ministerial duties.” The text of the statue itself should define the cost-benefit analysis underlying the statute and avoid vague buzzwords that grant agencies enormous leeway to steer legislation away from the legislation’s purpose.  As the report notes, “[e]very degree of additional precision, definition provided, or buzzword avoided takes away legal arguments an agency can utilize to exercise discretion or otherwise stretch the meaning of a statute.”

Best Practices

To that end, the report recommended the following key elements for any new legislation.

1. Define your terms:  “Drafters should ensure that all key terms are defined and that the definitions themselves are narrowly tailored.”
2. Use precise and specific terms:  The goal is to avoid highly generalized language capable of expansive interpretation and to move instead toward greater specificity. “In reviewing legislative text, a drafter should be able to confidently state that every major term used can be no more precise than its current iteration.”
3. Think Like an Administrator: Because agencies often deliberately look for ways to subvert legislative intent and enlarge their own power by latching onto imprecise language in the statutory text, drafters of new legislation “should take on the role of a creative agency administrator and attempt to devise ideas of how the language of a statute could be used to further ideas completely unintended by the drafters or Congress.”  The ultimate goal is to limit such agency “creativity” by more careful drafting.
4. Avoid Buzzwords:  Over time, certain words and phrases typically used in statutory text have proven themselves  to be susceptible to abuse and misuse by the agencies.  The report highlights some of this problematic wording, including:  Reasonable, Appropriate, Necessary, Arbitrary and Capricious, And other measures, and As defined by the administrator/secretary. These words need to be systematically avoided because they grant agencies far too much power to inject their own policy preferences instead of following the will of Congress.

Careful language in the statutory text is the key to limiting agency overreach.  As this section of the working group report concludes, “[t]he best way to stop administrative deference, delegation, and discretion is to give agencies nothing more than ministerial duties. Hold other offices accountable, avoid the buzz words, fill up the details, and make the cost-benefit-analysis in the bill text. That is our real test.”