New Hickman & Wildermuth Article: Harmonizing Delegation and Deference After Loper Bright
By
| March 13, 2025
Professors Kristin Hickman and Amy Wildermuth have a new article on Loper’s two buckets: “independent judgment for mere statutory interpretation and reasoned decisionmaking for exercises of delegated policymaking discretion.”
Abstract
By overturning Chevron, the Supreme Court’s Loper Bright decision clearly changed the way in which courts must approach agency actions interpreting statutes. But Loper Bright stopped well short of declaring that courts should always ignore agency interpretations and only interpret statutes using their independent judgment. In two critical paragraphs, the Court acknowledged that some statutory provisions delegate discretionary authority to agencies counseled a more restrained judicial review for reasoned decisionmaking when agencies exercise such power. But, whereas Chevron focused nearly exclusively on the statutory word or phrase that an agency was endeavoring to interpret and implement, Loper Bright shifts the analysis at least initially to the delegations themselves-i.e., the statutory terms that give agencies the authority to act in the first place. Drawing on prior work, we propose a framework that categorizes statutory delegations of rulemaking power as specific authority, general authority/housekeeping, and hybrid delegations. We then argue that Loper Bright is best understood and interpreted as demanding independent judgment, potentially influenced by Skidmore‘s contextual factors, for general authority/housekeeping regulations and a more restrained reasoned decisionmaking review for specific authority and hybrid regulations. We explain how this approach harmonizes Loper Bright‘s vision for judicial review of agency action with the Supreme Court’s recent nondelegation and major questions jurisprudence. We also suggest that reading Loper Bright this way will cabin agency discretion in a manner that curtails agency overreach while still allowing executive discretion in implementing and administering statutory requirements.
