Lawfare Daily: The Supreme Court Takes the Bait: Loper Bright and the Future of Chevron Deference

[Introduction]

Nick Bednar: We can read the opinion so that there's zero deference, that there's kind of some deference, we'll call it Skidmore, or that there's more deference, that the court actually didn't change Chevron at all despite all this lofty rhetoric.

Alan Rozenshtein: It's the Lawfare Podcast. I'm Alan Rozenshtein, Associate Professor of Law at the University of Minnesota and Senior Editor at Lawfare, co-hosting today with Molly Reynolds, Senior Editor at Lawfare and Senior Fellow at the Brookings Institution. And we're talking with Bridget Dooling, Assistant Professor of Law at the Ohio State University, and Nick Bednar, Associate Professor of Law at the University of Minnesota.

Bridget Dooling: So we'll, we'll have to see. I mean, when I talk about kind of waiting for the chips to fall, what I mean is both, you know, what are the lower courts going to be up to, and also what kind of incentives does or doesn't this shift, you know, for Congress.

Alan Rozenshtein: Today we're discussing one of the highest profile cases from this Supreme Court term, Loper Bright Enterprises v. Raimondo, which overturned the decades long Chevron doctrine about judicial deference to agency interpretations of their own statutes.

[Main Podcast]

All right, Bridget, let me start with you. So, I think it'd be helpful as background for our listeners, especially those listeners who don't have the luxury of thinking of ad law all day, every day. What was the state of the law until the end of this Supreme Court term when it came to judicial review of agency interpretations of their statutes? So specifically before, you know, Loper Bright, how much did courts actually defer when agencies interpreted ambiguous provisions in their implementing inorganic statutes?

Bridget Dooling: Yeah, great question. And just first, thanks so much for having me on. It's a real pleasure to be with y'all today. It really bums me out to think that there are people out there that don't think about administrative law all day. What a loss for them. It is, it is my whole world. So yes, okay. So let me give you an overview of, you know, what was going on, as you say, you know, before we got Loper Bright.

So agencies, I mean, big picture, right? Agencies get their power from statutes. They don't have anything that Congress doesn't give them. So understanding what Congress told them to do is hugely important in this space. Because if Congress didn't actually tell an agency to do something, then, and then they do it anyway, right, that means the agency's operating outside the boundaries of the law. So the stakes are pretty high and that's why this issue ends up being, you know, such a blockbuster is that this is really about, you know, that whole relationship, that whole ecosystem.

So the problem, of course, is that statutes are not always super clear. I hope you're not scandalized by that idea, but it's just a reality of the legislative drafting process. That we end up with language sometimes that does not answer all the questions that an agency might need an answer to in order to implement a particular program or write a rule or issue a grant, for example. Now that lack of clarity might be an accident or it might be intentional, that might be part of the compromising process that is part of legislative drafting. So, down the road, when someone challenges a rule based on the legal interpretation that an agency made of a statute, they do that in court.

So courts are asked to resolve the matter, and it's at this moment where deference doctrines either go to work or not. Judges end up having to decide how to approach their job of interpretation, especially when the language is simply unclear. And, in this scenario a judge has a very sophisticated party in front of them with important information about the statute and the program and the stakes and the interconnections between this and other statutes, et cetera. And that's the agency, right? There might be hundreds of people at an agency working on a program that a judge is maybe only just hearing about in this case that's before them. So, the question is, should the judge pay special heed to an agency's views on what the law means or not? Or how exactly are they supposed to navigate that? And on a scale of, of zero to absolute deference, here's some options, right? So, one option might be to treat the agency like a regular party. No special consideration or deference at all. This option really isn't on the table, even under, you know, the case Loper Bright. Another option is to take very seriously the agency's views and give them weight, but not the kind of weight that's always going to settle the issue. Let's call that Skidmore deference.

Alan Rozenshtein: And so just to be clear, when you say Skidmore, you're referring to this sort of older case that comes before Chevron, which provides for some low, but nonzero level of deference.

Bridget Dooling: You got it. You got it. That's right. Thanks for that. Another, you know, again, moving along the line from zero to absolute deference, another option would be, and these are all options for the judge, right, that I'm sort of laying out for you when they find themselves in interpretive quandary. Another is to defer to the agency if that agency's interpretation is reasonable. That is Chevron deference in a nutshell. And then at the other end of the spectrum, another option for that judge might be to defer to the agency no matter what. Let's call this absolute deference. And again, this is something that nobody's asking for, that I don't think anybody thinks is reasonable, but I'm just trying to sort of stake out the full range of possibilities. So that's the key issue that we're talking about today. Deference: how to do it, how strong is it, you know, how does it actually get applied?

Alan Rozenshtein: Okay, so that's, so that's helpful. So, a couple of questions on that. So, one question is, the day before Loper Bright was decided, of those different options, no deference, some deference, just say Skidmore deference, then Chevron deference, then absolute deference, what kind of deference generally, if it's possible to say, were courts paying agencies? Because, you know, when I, you know, I teach a class on this and when I teach Chevron, right, from the eighties, the idea was that Chevron just basically always applied, but, but that is not actually the state of the law before Loper Bright.

Bridget Dooling: That's right. And I'd love to get Nick in this conversation too, at this point, because that's right. I mean, I think there is some nostalgia for, you know, how much work Chevron has really been doing. I mean, not least because the first step of figuring out if Chevron applies is to look at whether, you know, the, whether the legislation in question was sufficiently clear that you could tell what it means on its face. As you could imagine that is a very flexible question, right? And a lot of people can just disagree over what it means to be clear. So I do think there are some, you know, descriptive disagreements about how much work the old regime, Chevron deference, was doing when it came to, you know, working through these interpretations in court.

Nick Bednar: Yeah, I mean, I'll just quickly say, you know, we talk about this kind of sliding scale of possible deference. And where we were prior to Loper Bright was courts were using several different standards to review agency action. So there was a case that came out in the early 2000s United States v. Mead Corp, that said, actually, we're going to operate in a world where there are two types of deference. We're going to have Skidmore deference, which Bridget called the some deference standard. And we're going to have Chevron deference, which is the more deference standard.

And when an agency has the authority to act with the force of law and does so, such as in a rulemaking proceeding, we're going to give them more deference because we think they've considered this issue a lot more and Congress wants them to decide the interpretive question. But if the agency is doing something that it seems less formal, like guidance, we're going to just say that gets some deference. The agency still has expertise. It still probably understands the law a bit better than the court, but we don't want to give it that kind of more deference standard that we're giving to more formalized agency actions.

Alan Rozenshtein: Okay, so one more table setting question. So we've established that we have these deferences. By the time we get to Loper Bright, it's actually unclear how often the courts get, or the agencies rather, get Chevron deference, or even how much that means. The last question I want to ask is, Loper Bright, I think, has been viewed very much as a conservative victory, in part because of how the vote came down, 6-3, with the conservative bloc voting in the majority and the three liberals in dissent. And it's also one of these, I think, rare Supreme Court opinions and especially rare ad law opinions that has broken into the public conversation, right? It's on, it's being covered on Fox News, it's being covered on MSNBC, and everyone generally agrees that this is a victory for conservatives.

If, if you're on Fox News, you're happy about that. If you're at MSNBC, maybe you're not happy about that. Can you, Bridget or Nick, talk about what political valence, if any, Chevron had? Because I think one thing that's important, maybe you can walk us through the history of this a little bit, is that when Chevron was first announced, it was actually viewed as a much more conservative judicial doctrine. And its biggest proponents tended to be folks like Justice Scalia, very much a conservative, and its biggest detractors were sort of good, Warren Court liberals who believed in the court. So, so how did that start? And how did we get to this point where 30, 40-some-odd years later, Chevron has become this bet noire of the conservative legal movement. And at the same time is for a lot of liberals like the only thing standing between us and I don't know, the end of the administrative state.

Nick Bednar: So you're right when Chevron comes down in 1984, right? It, it's used to uphold a deregulatory position of the Reagan administration with respect to the Environmental Protection Agency. So for a long time-

Alan Rozenshtein: And, and, and I, I can't help myself. Not just that, but I think it's just a fun little historical irony, a deregulatory position of the EPA that was then being run by now Supreme Court Justice Neil Gorsuch's mother, which is, of course, it's totally irrelevant to any merits here, but is, is really fun to just know.

Molly Reynolds: This is also, for the record, not the first time we've covered Neil Gorsuch's mom on the Lawfare Podcast. She's also a key player in the history of congressional contempt, so, just want to put that on the record.

Nick Bednar: If you're someone who's steeped in this, right, you know that Justice Gorsuch is one of the biggest opponents right now to Chevron deference and the idea that the administrative state can exercise this degree of policymaking authority. So when Chevron comes down, right, it's very much seen as a decision to support the deregulatory efforts of the Reagan administration. And that shifts over time. And it kind of shifts depending on who's president. You seem to like Chevron a lot more if you're in an administration that is producing interpretations and policy that kind of align with your ideological preferences. And at some point, around 2016, that shift no longer happens. Donald Trump enters the presidency and begins appointing judges who just kind of have a baseline skepticism towards the administrative state. And as a result, we get quite a few lower court and Supreme Court justices who just are not in favor of Chevron.

Now, as a baseline, right, is Chevron liberal or conservative? To some degree, it depends on which policy area you're talking about. If you talk to immigration law practitioners, they hate Chevron deference because it means we should be deferring to the interpretations of the Department of Homeland Security and the Department of Justice, which tend to be anti-immigrant. And so as a result, you know, I think it's more complicated than just saying Chevron is a conservative doctrine or a liberal doctrine. It depends a lot on who's in power and what specific policy area we're talking about.

Bridget Dooling: I think the only thing that I'd add is to that is that I do think there's a valence here that runs through not just this case, but a number of the administrative law decisions that we've seen out of the Supreme Court recently, a general skepticism of the administrative state as an enterprise, right? Wanting to trim its sales, wanting to restrain it, wanting to put it back in its lane, from their perspective. And so I, I think that those power dynamics and the sort of rise of that skepticism, you know, has sort of traveled alongside the development of the deference doctrines that we've been talking about today.

Molly Reynolds: So, this is really a really helpful discussion, particularly as someone who is not a lawyer. So, I want to take us into thinking a little bit more about the specifics of this case. So, Nick, can you just give us sort of a run through of what were the facts in Loper Bright? Loper Bright was one of two parties in this case. The other, it's a little bit sad to me that we've identified the case with Loper Bright and not with Relentless Enterprises-

Bridget Dooling: Truly, truly.

Molly Reynolds: Which is the name of the other, the other party.

Bridget Dooling: Can we just like change that ourselves? Can we just do it out here? Like, cause I think we all agree it's the vastly superior caption for this case.

Molly Reynolds: It definitely is. So, Nick, can you just sort of walk us a little bit through the facts of this case and what the majority held.

Nick Bednar: Yeah, so, the Supreme Court ultimately takes Loper Bright v. Raimondo and Relentless v. the Department of Commerce, Relentless should be the case name, and I think if all administrative law scholars refuse to call it Loper Bright, then we just win. Anyway, so they take this case to decide whether it should overturn or clarify the Chevron standard of review. So recall Chevron's the more deference standard. And in a 6-3 decision, the Supreme Court emphatically holds Chevron is overruled. The facts of the case involve a regulation of the National Marine Fisheries Service, which required herring boat fishermen to have a federal observer on board and pay for that federal observer. But ultimately the facts aren't really important to this decision, right? We're not here because we're vastly interested in the operations of herring boat fisheries.

Alan Rozenshtein: Speak for yourself, Nick. As a, as a Russian Jew from Long Island, this hits me where I live.

Bridget Dooling: Well, also, have you guys seen that, the movie “Coda,” right? So this is, this is like one of the, one of the threads in the movie “Coda” is this idea that these fishermen have to pay for the inspectors that they have to host on their vessels and that this is deeply irksome and super expensive. And so I do think, while I agree that like the larger sort of movement in Chevron here is not about this, you know, the particulars in this case. I do think that the sympathetic facts of this do sort of set up the stage for what the majority is doing.

Nick Bednar: Let me clarify, I have nothing against herring fishermen. I am a mere administrative law scholar and I am here for an entirely different reason. So, okay, so we have these herring fishermen and they sue. Mostly because, like, there has been this opening on the court for a long time to challenge Chevron deference and the court finally, for lack of a better phrase, takes the bait. So, writing for the majority, it's a 6-3 decision, Chief Justice Roberts concludes that Chevron violates the law.

So let me talk a bit about what law it's violating. Okay, so there's the Administrative Procedure Act. And the Administrative Procedure Act is kind of, you can think of it as the Constitution of the administrative state. It's a statute. It's passed by Congress. But it tells courts, Congress, and agencies, how we're all going to work together, and what procedures the agency has to follow when it makes certain decisions. And Section 706 of that act says, the reviewing court shall decide all relevant questions of law and interpret constitutional and statutory provisions. And Chief Justice Roberts writes, Chevron turns the statutory scheme for judicial review of agency action upside down. Courts are supposed to be the ones interpreting the law. Chevron deference is saying actually we should defer to agencies. So Roberts thinks this doesn't comply with the Administrative Procedure Act and he gets a majority to join it. I want to emphasize, because this gets lost in the discussion sometimes, that the majority grounds its decision in the Administrative Procedure Act, not the Constitution. So it's a statutory holding. Justice Thomas writes a concurrence suggesting that Chevron also violates Article 3, and the majority couches its decision in a bunch of constitutional rhetoric, raising Marbury v. Madison, and it's the court's obligation to say what the law is. But it ultimately decides not to consider whether the Constitution itself prohibits deference.

Okay, so Chevron's gone. Since Loper Bright was decided, there's been a lot of conversation among administrative law scholars about where we are. I think there's three ways to read the opinion. And all three ways point to a different style of deference that Bridget pointed out. So we can read the opinion so that there's zero deference, that there's kind of some deference, we'll call it Skidmore, or that there's more deference that the court actually didn't change Chevron at all despite all this lofty rhetoric.

So first option, the court has replaced Chevron with what we call de novo review. And that would require courts to arrive at the best interpretation of the statute using traditional tools of statutory interpretation such as the language, dictionaries, and a bunch of odd Latin canons that only lawyers understand, without concern for the agency's preferred interpretation. And a cursory glance of the of the opinion suggests that's what the Court did. It uses all this strong language laced with constitutional rhetoric about the court's obligation to exercise independent judgment in deciding whether an agency has acted with this statutory authority. Roberts at one point says, quote, even if some judges might (or might not) consider the statute ambiguous, there is a best reading all the same—the reading the court would have reached if no agency were involved. And so according to the majority, the APA, the Administrative Procedure Act, means that agencies are not entitled to deference. Agencies can persuade the court that their interpretation is correct, like any other litigant, but they should receive no special treatment.

Now, we have only had Loper Bright for a short period of time, but there are some lower courts who are reading the case that way.  So there's an order out of the Eastern District of Texas that states the standard of review as follows: In reviewing agency action under the APA, courts must exercise their independent judgment in deciding whether an agency has acted with its statutory authority and should set aside any action inconsistent with the law as they interpret it. A court should no longer defer to an agency's interpretation. There's a separate order out of the Southern District of New York that also refers to Loper Bright as embracing de novo review. So, one reading of Loper Bright is we go back to that no deference level, that we're not going to give agencies any special treatment.

A softer reading of the court's opinion is that it embraces that some deference standard known as Skidmore. So, Skidmore, when it was decided, offered all these kinds of standards, contextual factors, such as how long has the opinion or how long has the agency's interpretation been in place that court should use as a sliding scale to decide whether the agency's interpretation should receive greater weight. And throughout the opinion, Chief Justice Roberts emphasizes this kind of long tradition of giving respect to executive branch interpretations of federal statutes. And on a couple occasions, he even favorably cites Skidmore. So another reading of Loper Bright is that the Supreme Court has restored what Kristin Hickman and Matthew Krueger called sliding scale deference. They've gotten rid of that more deferential standard known as Chevron, but they're keeping the Skidmore standard that they said was still alive in United States v. Mead.

The final reading, and perhaps my favorite reading of this opinion, is that Loper Bright didn't change anything at all. So the conservative majority, for a long time, this comes up through Justice Gorsuch's concurrences and dissents, is really worried about something called mechanical deference, and that's what the Loper Bright decision calls it. And this refers to the idea that courts simply defer without actually considering the meaning of the statute or whether Congress has actually delegated authority to the agency. So although there are cases where lower courts appeared to skip a statutory interpretation analysis, most lower courts actually use those tools when applying even the more deferential standard known as Chevron.

So despite all this kind of lofty rhetoric about the need for the independent judgment of the courts there are all these hints that Chief Justice Roberts still believes there's a space for some amount of deference. So, he acknowledges that Congress can delegate interpretive authority to agencies, and he outlines several ways Congress may do so. So, he says a statute may expressly delegate an agency the authority to give authority meaning to a particular statutory term. It may empower the agency to prescribe rules to fill the details of a statutory scheme. Or the statute may use terms like reasonable or appropriate to leave the agency to decide with flexibility and how it administers the statute.

And if you're familiar with the Chevron opinion, this looks a lot like the rhetoric the Chevron court used to describe when deference is appropriate in the first place. And so after explaining all the reasons that Congress may choose to delegate to an agency, Chief Justice Roberts then says the Court fulfills its role to independently interpret the statute by quote, fixing the boundaries of the delegated authority. But this is what a lot of administrative law scholars thought Chevron did in the first place. And so it's not wholly clear whether the Court has departed from Chevron in the way some people thinks it has. So we have these kind of three different ways to read Loper Bright. And it's going to be up to the lower courts to decide which reading gets applied in cases going forward.

Alan Rozenshtein: All right. So let's, let's dig in here. I want to ask a question about Skidmore. And then I want Molly to get to ask all her Congress questions. So Loper Bright, it says Chevron is overruled. So, let's just assume for a moment that Chevron is in fact overruled, whatever that means. It also says that Skidmore is still good law. So, let's assume that Skidmore is still good law. Bridget, when you were first describing Skidmore, you described it as a, as a some deference rather than no deference standard. I want to ask about that because I think now that Chevron is gone, whatever that means, the exact contours of Skidmore are about to become extremely important.

When I teach this in my legislation and regulation class, I introduce Skidmore, but then my punchline is that Skidmore, although it claims to be about deference, is actually no deference at all. Because if you read the list of factors that the court says in Skidmore, it's basically just telling the court, hey, the agency lawyers are really smart and they know a lot of things, and you should listen to them pretty carefully. But of course, any self-respecting professional judge, right, who's actually trying to come up with the right answer is always going to listen to smart people in front of them. They're going to listen to smart people if they're from the agency, but they're also going to listen to smart litigants. And so I've always viewed Skidmore as pay people deference when you independently have decided that they know more than you do. But in a way, that's not deference at all. That's just basic rationality. Right? In the same way that if I go to the doctor and I ask the doctor to diagnose me, am I deferring to the doctor or am I just rationally saying, well, I think you know more than I do. I'm ultimately making the final choice, but you're a doctor. You have this fancy diploma on your wall. You've convinced me that you're right. So this is a long winded way of saying, I personally don't see the difference between de novo deference and Skidmore deference? But tell me why I'm wrong, if I am.

Bridget Dooling: I'm not sure you are, because I think once you get into the weeds of these cases, and, and this is something that Justice Kagan does really nicely in her dissent, is she sort of walks you through a few of the types of questions that end up coming up in these cases. And they are the weeds of the weeds of the weeds, right? It's like, is this type of Western gray squirrel distinct from that type of Western gray squirrel? I mean, this is the weeds. So I guess once you start putting some facts to some of these cases, I think it gets, it gets sort of more obvious why a judge would, in the context of any particular case, you know, look at the sophistication of the agency's argument and say, yeah, okay, I mean, I don't know any better than you what makes a squirrel distinct from another squirrel. So we're going to go with what you said, right.

And I, I think that you can call, you can call it weight. You can call it judgment. You can call it deference. You can call it a lot of different things. And part of what we're struggling with now is like, what exactly do we call this new world? Is it something different from deference? It's definitely something different from that idea of mechanical deference that Nick raised, this idea that the judge says, well, whatever the agency wants, there you go. I'm not sure a lot of that happens in the wild, to be frank. I mean, I, I believe that judges are doing what judges are generally supposed to do. And if they were doing that type of mechanical deference, that would violate the old Chevron regime, right? That does not follow the Supreme Court's guidance in, in Chevron.

So, I don't know, is the answer, is, and I think that's part of the quandary that we're in right now as a field, is kind of, we need to let the lower courts play this out, see what they do with it, see how they get checked by their reviewing courts. And I don't know, in five to ten years, we'll probably have another name for it, right? But we don't have it right now, and we're, so we're all sort of trying on different language to describe what type of thing the judge is doing when it considers the party's argument very carefully as, as you say, you know, any judge would.

Molly Reynolds: So I want to go back for a second to something that I think Nick said earlier about the fact that the majority in this case holds that Chevron is a violation of the Administrative Procedures Act, but does not hold that Chevron or other forms of deference are unconstitutional. There is this opinion from I believe it's Justices Gorsuch and Thomas that would go that far, but the majority opinion doesn't hold that. So, I want to pose the question of, you know, putting aside for a second, Congress's multitude of challenges at doing a lot of things. Could Congress just reenact Chevron, either wholesale or on a per statute basis? Are there constraints to doing this? What are your thoughts on, on that question?

Nick Bednar: So I actually prepped this question because I knew Molly was on the call, and I thought there was a good chance it would get asked. So, the Court decides Loper Bright as a matter of statutory interpretation, but leaves open the constitutional question, which makes it initially seem like Congress could restore Chevron deference by statute. So, members of Congress have proposed bills to protect Chevron deference, even prior to the decision in Loper Bright. So, the Stop Corporate Capture Act was introduced, and it would have amended the Administrative Procedure Act to require courts to quote, defer to the agency's reasonable or permissible interpretation of a statute, regardless of the significance of the related agency action or a possible future agency action.

And ostensibly, right, if we believe the court is just holding this as a matter of statutory interpretation, the act would restore Chevron deference and eliminate what is also called the major questions doctrine, which prohibits agencies from answering questions that are politically or economically significant. That said, Justice Thomas writes this dissent that says actually Chevron's a violation of Article Three, that only courts can interpret the law. And the majority includes all this rhetoric about the Constitution and the role of the courts. And so it's not clear to me that if something like the Stop Corporate Capture Act were passed that Chevron would survive. I think this was the narrowest holding Chief Justice Roberts could pick, and he didn't want to reach the constitutional issue. But push comes to shove, I'm not convinced restoring Chevron deference would survive the current Supreme Court's understanding of Article Three.

Molly Reynolds: That's really interesting, and sort of gets at the next thing that I also want to ask about, which is that you can read some folks, including folks who I think are quite smart about the U.S. Congress, argue that we should think of this as sort of a moment of opportunity for the, for the Congress. That the response to this from a separation of powers perspective should be for Congress to, you know, really beef up its internal capacity and expertise and be prepared to write more detailed statutes. I will admit that I am somewhat skeptical of this line of argument, but I'm curious as someone who, you know, thinks about the Congress as a sort of political body and a political institution. And as I think Bridget alluded to at the top, as a institution that is constantly making compromises on its way to its ultimate legislative products. And so that sometimes the sort of ambiguity and delegations of authority we see are on purpose and not by accident and that that doesn't change. But I'm curious for sort of your reactions as kind of folks who come at this from a, from a legal perspective. Should we, should we buy this argument that this is a moment for Congress to try and rise to the occasion? Or do you share some of my skepticism of that line of argumentation?

Bridget Dooling: I mean, I think for a lot of reasons, a lot of us would love it if Congress said, sweet, let's, let's get back to the drawing board, guys. Let's revisit these old compromises. Let's pick up these statutes from many decades ago dealing with modern problems so that agencies are struggling to apply to modern problems. I mean, yeah, cool, great. That'd be awesome. But like, there's not really been anything holding them back from it. So we'll, we'll have to see. I mean, when I talk about kind of waiting for the chips to fall, what I mean is both, you know, what are the lower courts going to be up to? And also what kind of incentives does or doesn't this shift, you know, for Congress? So I don't know. I mean, hope springs eternal. That would be great.

Although I do think that the, the pursuit of precision is something of a fool's errand because of the compromise process that you described, Molly, but also because, you know, legislators are humans too. They can't see around every corner. They can't envision every possibility. And even if they had, you know, all the time in the world, you know, really couldn't imagine all the things that life's going to serve up for us, and new technology is going to provoke, and changes on the ground are going to provoke, social trends are going to provoke. So, you know, this idea that the majority opinion uses, this idea that, you know, statutes have a, a knowable sort of fixed meaning at the time of enactment, and that's what judges should be looking for, I think just really, it doesn't match my understanding of how legislation actually gets drafted. And this is also one of the points that, you know, Kagan brings up in her dissent, that like, this, we've known for a long time, thanks to great work by Vic Norris and Abbe Gluck and others, that, you know, the way Congress works is, is not necessarily this way. So there's sort of a, a belief that the, that when Congress acted, you know, it was a, it was complete accounting for everything they wanted to accomplish right there on the page. And so there's really no need to, to sort of fill in the blanks, because it's all right there for the taking. And I just, I, I don't know a person who studies Congress that think that, that that's actually how legislation gets written.

Molly Reynolds: I don't, I don't either.

Bridget Dooling: Right. Which seems like a pretty significant problem for the majority's view, right? This idea that, well, you know, it's not just that Congress could be more precise in the future, right. It's not just about stimulating future legislative output, it's about saying the things that they've written were already quite clear and knowable, you know, based on what they've done. And I just don't get it. I don't agree.

Alan Rozenshtein: So, I want to make sure that we have some time to talk about some of the other important ad law cases, but before I do that, I want to ask you one last question about the new world of Loper Bright deference, whatever it is. And that is, you know, we've been talking in this conversation generally about administrative agencies, but this is Lawfare, we do hard national security choices, so I want to take a moment to think about, you know, what, if anything, we can say about those substantive areas that sort of are of particular interest to Lawfare, whether it's national security or, you know, foreign policy or tech policy. Is there any reason to think that Loper Bright, again, whatever it ultimately ends up meaning, will play out differently in these domains than in the rules regarding herring fishing, for example.

Nick Bednar: So, I think it will play out differently in both foreign affairs and tech policy, for two sort of separate reasons. To start with foreign affairs and foreign policy, the Supreme Court has often applied a different deference doctrine in these sort of cases, and it's called Curtiss-Wright deference. And Curtiss-Wright deference is this idea that courts should afford greater deference to executive branch actions in the foreign affairs context because the president has plenary power in the foreign affairs arena. Given that's a constitutional hook, it's not clear to me that Curtiss-Wright deference is going away. And that's closer to being kind of the super deference Bridget referred to. So there's this study by Bill Eskridge and Lauren Baer that looked at the Supreme Court's deference doctrines, all of them, for some period of time. And it found that when the court invoked Curtiss-Wright deference, it always deferred to the executive branch. Now, there's some subsequent literature that suggests maybe that's waning a bit, but given that this court hasn't been shy about expanding or preserving presidential power, I don't really see that going away.

With respect to tech policy, I'll just point back to something Bridget said earlier, which is, yes, there are certain cases that are really politically salient that involve tech policies such as the net neutrality decision. But a lot of stuff concerning technology and, you know, regulated industries is really complicated, technical, scientific determinations that the courts do not want to wade into. If you talk to like a D.C. Circuit law clerk, they will tell you the scariest opinion they can encounter is something where they have to write about the Federal Energy Regulatory Commission. They don't want to get involved in those kind of highly technical cases. And so, I think we're going to see different win rates under Loper Bright, or what we should be calling Relentless deference, based on kind of how specialized and technical the agency actually is.

Bridget Dooling: Yeah. And a version of that describes, you know, how deference worked before Chevron deference, right? Chevron did not create this concept of deference. Judges have long had to, judges have long been faced with that interpretive question and those four options that I laid out at the top, right? The issue comes in, they've got two parties in front of them. One says the statute means X and one says the statute means Y. Judges have had to figure that out for as long as we've had statutes and judges, which is to say for a very long time. So that's going to continue to be the case. And so, and if you look back at how courts handled these questions, you know, pre-Chevron, they sort of waded through it, right? And a lot of times they did give weight or deference or whatever you want to call it to the agency in mind.

So I think, for example, for an agency like FDA or FCC, where you've got, you know, a high degree of technical knowledge, scientific knowledge required in order to make particular determinations, I'd be surprised if you don't see judges, at least some judges, you know, continuing to say, yeah, okay, you got this, right? We're going to go with what you recommend. And that is, that is itself part of the judging role. So when the majority opinion in Loper Bright says, you know, we need to put judges back in the driver's seat for doing this interpretation, part of the process of doing an interpretation is taking in, you know, the different arguments and giving them the appropriate weight. So there's a version of this that is just where that, that comes from process of deferring to an agency just gets sort of nested within the interpretive exercise itself. And judges are free under Loper Bright to, you know, give, give agencies that kind of weight when they see fit.

Molly Reynolds: So, Loper Bright, not the only significant administrative law case that the Court decided this term. There's another case that I'd like to make sure we touch on at least briefly, because I think it is also consequential, and that's a case called Corner Post v. Federal Reserve. Bridget, can you tell us a little bit about, sort of, what's at play in that case and kind of why it's important? Obviously, we spent most of our time talking about this idea of deference, but I think there's, there's some big questions that come up in this case as well.

Bridget Dooling: Yeah, absolutely. Thanks. And, and I agree. I mean, there actually were several administrative law decisions that came down this summer. And I, I mean, to me, Corner Post is as significant, if potentially not more significant than Loper Bright. So in the interest of time, I'll just give you the punchline of that case. The Administrative Procedure Act has a, has a sort of six year statute of limitations on agency action, right? So you've got sort of a six year clock and the question has, has been, when does that clock start, right? What, what starts the trigger to run that clock? So we've been working under the idea that the clock starts when the agency action is final. So in the rulemaking space, it's some, it's, it's basically when the agency issues a final rule. So the proposed rule isn't enough, the agency has to have gone through the comment period, issued the final rule, for example.

In Corner Post, the big change is that the majority decided that the statutory triggers use of the word accrues means that the starting clock on the six years is more about the particulars of the plaintiff rather than, you know, the position of the particular agency action. So, in Corner Post, you've got an entrant, a new entrant that wasn't around when the rule was promulgated, pops up later, and then is injured by that rule. Corner Post stands for the idea that that plaintiff still has the ability to challenge a rule, you know, perhaps decades after it was promulgated, because that plaintiff, that harm has accrued to that plaintiff, you know, within the six year period of that plaintiff basically, you know, becoming aware of it.

So that's the big shift and that, that's a very big, that, that type of decision really supercharges, you know, the consequences of something like Loper Bright or any of the other administrative law cases that, that have been released by this court as well as, you know, prior courts, you know, things like the major questions doctrine, for example. It basically widens the scope of how many rules are up for grabs through, you know, by, by being challenged in court because that six year clock has just vastly expanded.

Alan Rozenshtein: So one interesting thing about Loper Bright is that, and I'll get to Corner Post in a second, but I think it's interesting comparison, Loper Bright, the Chief Justice specifically says, to be clear, any rules or regulations that have been upheld under Chevron, they stay upheld. It's, so there's no retroactive force of, of Loper Bright. I, I haven't read Corner Post as carefully as I'd like to. Does the court say anything about that? Or is now literally every stat, every rule rather, that has ever been enacted, if there is a new entrant, or someone can claim, hey, I've just been injured. Now they have six years because that would be a huge difference in the potential impact of these two cases.

Bridget Dooling: Yeah, I mean, it's, it's, it's the latter, right? So, it's, it's really-

Alan Rozenshtein: Yikes. Which is the technical ad law term.

Bridget Dooling: That's, we do that one a lot, actually, in administrative law. We do yikes a lot. Yeah, no, that's right. And that's why, to me, you know, when you think about the significance of these cases, I understand that Loper Bright is, is the sort of headline maker because Chevron deference is, it is a big deal in administrative law. But you're only at the point of dealing with deference once you've gotten through all those other threshold issues that you need to jump over in order to get into court.

What Corner Post does is make it that much easier to get into court and therefore expands the pool of potential claims, right? Expands the number of cases that these, these courts are going to have to hear. Exactly how widely that ends up opening the aperture, basically, is part of what, you know, I'm curious to watch as lower courts try to grapple with, you know, what Corner Post actually means for the administrative state. But if it means what it looks like it means, it does mean that a new entrant, you know, experiences harm is going to be able to upset and challenge, you know, rules that are potentially very, very long settled. So that is, to me, that is a more seismic type of change than the one that, that we, that has gotten so much attention because of Loper Bright.

Alan Rozenshtein: Before we close out, I want to zoom out and talk about this term and this court more broadly as it relates to administrative law, but also to executive power generally. So obviously there's a lot of uncertainty about what Loper Bright deference means. But I think between Loper Bright between Corner Post between other administrative law cases I think it's fair to say that this court, the Roberts Court, the conservative wing of it is more skeptical of administrative agencies than, you know, even conservative justices have been in the past, not to mention liberal justices.

And yet at the same time, we're seeing cases I think obviously the, the, the biggest, the highest profile case this year, even higher profile than Loper Bright, of course, I'm referring to the immunity case, Trump v. United States, in which the court simultaneously seems to want to give at least the president a lot more power. And there are other administrative law cases from previous terms about, in particular, removal authority, again, giving the president more power. So you have these two things which, I think at least on their face, appear to be at least somewhat in tension. Because, of course, the administrative agencies, they're not a fourth branch of government. They are in the Article Two branch. Ultimately, and maybe the independent agencies here are a little bit differently, but a lot of the kind of core agencies are accountable to the president. So you have simultaneously a court that is trying to weaken the administrative state, but simultaneously empower the president who is in some sense the boss of the administrative state anyway. So is this inconsistent or is there some, is there some through line here that may not be immediately obvious? Let, let me start with, with you, Nick, and then we'll go to Bridget and you should also free to, to, to riff more generally on, on where the court seems to be going when it comes to sort of all things Article Two.

Nick Bednar: So the court has clearly taken a strong unitary executive theory position over the last, about, five years. It's very clear that it reads Article Two as endowing the president with a significant degree of authority over federal agencies. What I think the court and sometimes scholars of that theory fail to recognize more generally is that the president needs the administrative state to do a lot of what execution of the law looks like in the modern day.

So Andy Rudalevige has a book on executive orders. We think of executive orders as like the top statement from the president, right? It is the most presidential of actions. And what Rudalevige finds is that actually a lot of executive orders are created from the bottom up. That an agency has an idea of something it wants the president to issue, and it drafts an order pursuant to that. My own work empirically looks at rulemaking, and how presidents rely on federal agencies for capacity. So, I think that tension's absolutely right. That the court wants to increase presidential power in some way, but it doesn't necessarily appreciate it might be harming the president's ability to take care that the laws be faithfully executed by diminishing the power of federal agencies. And I don't know how to resolve that tension, but it's certainly present in these cases and I think it's just going to become more apparent as the court continues to tinker with the structure of the administrative state.

Bridget Dooling: Yeah, I, I agree that there seems to be this delineation between the president as an institute, the presidency, I suppose, as an institution and the administrative state. I think the thing that helps me reconcile the tension that you describe, Alan, is that I think simultaneously the, the skepticism about the administrative state is partly a frustration with Congress's passivity, right, and unwillingness to touch those old statutes and bring them up to speed and settle new disputes. Nick mentioned net neutrality earlier. I mean, if, if Congress, it's such a big policy that we have these huge policy questions, right, thinking about climate change, thinking about net neutrality, thinking about all kinds of things where if Congress could come to the table and legislate, we would then have more clear direction for an agency to follow, you know, to execute, right?

And so I think that in something like Loper Bright, you know, the, is sort of taking aim at the administrative state, how much power it has, but in a way that is a pretty strong nudge to Congress to get into the game. So I, whether that's the court's role to serve police, you know, legislative activity, we can have disagreements about that. But I do think that's part of what's going on there is a frustration with agencies using old statutes to address new problems and filling the vacuum, basically, that Congress is leaving when it fails to legislate. Also, agencies stepping into that vacuum and filling that space simultaneously reduces the pressure on, on Congress to legislate in some ways. So that might be part of what's going on here and sort of how you can simultaneously want to, you know, empower the president while clipping the wings of the administrative state.

Molly Reynolds: The other thing that I'll say on this question, I'll steal the moderator's privilege and say is that another sort of thing that links these two sets of arguments is that while it may present two different views of the power of different parts of the executive branch, they share a very vigorous role for the courts themselves. And so one, I think, again, for me as someone who thinks about these questions are kind of a broader separation of powers perspectives. Another answer here is that we are seeing the court sort of continue its project of enhancing its own power, the power of the federal courts generally, even if that means taking kind of two different tacks on the power of specific parts of the executive branch.

Bridget Dooling: Molly, we, we, we almost made it through a podcast about Loper Bright without saying, towards judicial aggrandizement. That was a mistake. So thank you for pulling us out of that.

Molly Reynolds: My pleasure. I very much enjoyed this conversation. I think we will leave it there for today. Thank you, Alan. Thank you, Bridget. Thank you, Nick, for this conversation.

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