New Paper Argues for “Gray Doctrine” of Implicit Delegation

Harvard Law School’s Matthew Stephenson recently published “The Gray Area: Finding Implicit Delegation to Agencies After Loper Bright.” From the abstract:

This Article argues that the canonical pre-Chevron cases Gray v. Powell and NLRB v. Hearst Publications, 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 (APA) 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.