At Volokh Conspiracy, Jonathan Adler: Whether Chevron Stands or Falls, Any Deference Should Be Based Upon Delegation, Not Ambiguity. From the introduction:
The Supreme Court recently heard argument in two cases in which the petitioners have asked the justices to reconsider the Chevron doctrine. The Court's willingness to reconsider Chevron has been a long time coming. As I explained in my opening remarks at a recent Solomon Center panel at Yale Law School, concern about Chevron, and in particular how it has been applied in lower courts, has been building for some time.
Recall that in 2018, in Pereira v. Sessions, in what would be one of his last opinions on the Court, Justice Anthony Kennedy raised deep concerns about the way Chevron has been understood and applied in lower courts.
At issue was the timing and amount of notice the federal government must give non-citizen, non-permanent residents to trigger the stop time rule, which can affect whether such individuals are allowed to remain in the United States.
Lower courts had initially adopted a rule requiring complete notice to trigger the rule. Ultimately, however, in the context of individual adjudications, the Board of Immigration Appeals disagreed. This prompted multiple circuit courts to adopt the contrary rule—a rule contrary to what courts had previously determined was the best interpretation of the statute (and the interpretation eight of nine justices would later conclude was compelled by the statutory text.)
Even though there was little statutory basis for the BIA's stingy, late-developed, pro-deportation interpretation, a majority of circuit courts had upheld it because the statute was ambiguous.
As Justice Kennedy remarked, the sort of analysis courts conducted in these cases to justify upholding the BIA's interpretation, relying upon Chevron, constituted "an abdication of the Judiciary's proper role in interpreting federal statutes."
…
As I see it, the Court has reached this point because of a range of concerns, some (but not all) of which Kennedy identified in Pereira. …
And in conclusion:
The [question presented in Loper Bright] suggests the Court overturn Chevron, but it also gives the Court room to clarify (and perhaps reorient) Chevron to focus on the delegation question–and to do so in a way that aligns nicely with the Court's recent major questions doctrine decisions. Specifically, the Court could emphasize that, before even considering whether to defer to an agency, they must first conclude that Congress delegated authority to the agency in question to resolve a policy issue with the force of law, and that when a statute is silent on the existence of agency of authority, courts should presume that such authority does not exist. Statutory silence is just that: Silence. It is not a delegation of power. (Admittedly, this is a position I have held for some time, and urged (unsuccessfully) in Arlington.)
As I see it, imposing this sort of limitation is the key step. Whether this is done by overturning Chevron, "Kisor-izing" Chevron, or merely adopting the Chief Justice's Arlington dissent is almost a stylistic choice. There is plenty in Chevron and subsequent cases to justify this outcome, even if it would overturn or repudiate some of the ways that Chevron has been applied.
Note that so long as the Court focuses on delegation as the source of agency authority, neither overturning nor modifying Chevron would limit the ability of Congress to entrust agencies with discrete policy questions in areas informed by agency expertise. As Chief Justice Roberts noted early in the Relentless argument, deferring to an agency on whether scientific or other evidence supports a particular conclusion is distinct from deferring to an agency's interpretation of statutory text. Indeed, even if the Court were to fully overturn Chevron in favor of a Skidmore-like regime, this need not foreclose reliance upon agency expertise, nor need it have any direct effect on how courts conduct arbitrary and capricious review and apply cases like State Farm.
This would suggest that some of the horror stories about a post-Chevron administrative state are quite overstated. The administrative state was able to operate before Chevron was decided (and before it was made the basis of a doctrine), and the administrative state will persist no matter how these cases are resolved.
Sounds right to me (and getting this right may be more important than Section 3).
Posted at 6:03 AM