Document Type
Article
Publication Date
2024
Abstract
In Loper Bright Enterprises v. Raimondo, the Supreme Court finally did what many long hoped (or feared) it would do: overrule Chevron v. Natural Resources Defense Council. Chevron instructed courts to defer to an agency’s interpretation of an ambiguous statutory provision, provided the interpretation was reasonable. Chevron, according to Justice Kagan, had “served as a cornerstone of administrative law” and “the warp and woof of modern government, supporting regulatory efforts of all kinds—to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.” Not surprisingly, statutes governing such matters contain quite a number of ambiguities. Under Chevron, agencies could rely on their expertise and policy views to resolve them. Under the new regime ushered in by Loper Bright, courts will resolve ambiguities by determining what the “best” interpretation of the statute is.
In many respects, Loper Bright was consistent with emergent patterns in the Roberts Court’s jurisprudence. As Justice Kagan wrote in her dissent, “it is impossible to pretend that today’s decision is a one-off, in either its treatment of agencies or its treatment of precedent.” Loper Bright, like many Roberts Court decisions, illustrated “the Court’s resolve to roll back agency authority, despite congressional direction to the contrary.” The day before Loper Bright, for example, the Court issued a decision holding that the Seventh Amendment prohibited the Securities and Exchange Commission (SEC) from levying civil penalties for securities fraud using the agency’s internal adjudicative processes. It also issued a decision pausing enforcement of the Environmental Protection Agency’s (EPA) Good Neighbor Rule—designed to combat interstate pollution—by deploying an aggressive form of arbitrary-and-capricious review. Loper Bright also continued the Roberts Court’s pattern of overruling precedent, either formally in an opinion, or effectively doing so by artificially narrowing or cabining previous cases.
But in at least one respect, Loper Bright marked a departure from a throughline in some of the Roberts Court’s other decisions. In overruling Chevron, the Court displayed open skepticism and even hostility to the notion that regulatory agencies could change their interpretations of ambiguous statutory provisions from presidential administration to presidential administration based on differing policy views. Yet in the Court’s presidential removal cases, the Court has insisted that Presidents must have the power to remove agency heads to facilitate the President’s ability to influence agencies’ policy positions and reverse positions with which the new President disagrees. That puts these two lines of decisions in tension with one another: whereas in the removal cases, the Court views itself as ensuring that a President holds broad influence over an agency’s policy positions, Loper Bright restricts the degree to which agencies can adapt based on the views of the President. This essay outlines this tension before surveying some possible ways to resolve it.
Recommended Citation
Deacon, Daniel and Leah M. Litman. "Two Takes on Administrative Change from the Roberts Court." Journal on Legislation 62 (2024): 1-13.
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