Gary Lawson (University of Florida Levin College of Law) has posted 'Then What?': A Framework for Life Without Chevron (60 Wake Forest L. Rev. __ (forthcoming 2025)) (50 pages) on SSRN. Here is the abstract:
The Supreme Court overruled Chevron in Loper Bright Enterprises, Inc. v. Raimondo and Relentless, Inc. v. Dep’t of Commerce. What happens next? What should happen next?
This essay does not try to answer either of those important questions. Rather, it seeks to provide a framework to promote careful thinking about those questions. Specifically, any predictive or prescriptive account of the law governing judicial review of federal agency legal interpretations needs to think carefully about four issues.
First, what does “deference” actually mean in any given context? “Deference” can mean anything from polite respect to absolute obeisance, and everything in between. The magnitude of deference given to agency legal interpretations was never spelled out clearly during the Chevron era, and it is not clear how the term was used by the Court in Loper Bright and Relentless. Whether and how deference remains appropriate after Chevron may depend on precisely what one means by “deference.”
Second, what could justify deference, however, defined, in specific contexts? There are numerous possible justifications for deference, ranging from treating deference as a helpful tool for decisional accuracy to using it as a cost-savings measure. Having a clear sense of how some or all of those reasons apply in various contexts is crucial to clear thinking, whether one is engaged in description, prediction, or prescription.
Third, what was the precise holding in Loper Bright and Relentless, and does that holding really matter in the real world? The Court told lower courts not to apply Chevron, but it said surprisingly little about what would take Chevron’s place. Bare case-specific Skidmore deference? Pre-1984 law, which included at least some categorical deference to agencies when legal interpretation was bound up with fact-finding? Categorical deference grounded in epistemic concerns? The Court did not say. More importantly, even if one can decode the Court’s prescription in Loper Bright and Relentless, it remains to be seen how lower courts will respond to it. If lower courts constructed the Chevron doctrine for reasons of judicial economy, as I think they did, telling them not to apply Chevron may simply encourage them to find alternative means to accomplish the same ends.
Fourth, assuming that Loper Bright and Relentless successfully reduce the level of deference afforded agency legal interpretations, will that simply encourage litigants and lower courts to push cases out of the “law” category and into the “policy” category, where deference still prevails? The case law has never drawn a sharp line between law and policy, and nothing in Loper Bright or Relentless helps draw such a line. Is there any way to draw that line in the modern world?
Again, the object of this essay is not to answer these questions. It is to provide an analytic framework to promote clear thinking about the present and future direction of administrative law. Hopefully, it at least points the way towards asking the right questions.
Posted at 6:22 AM