Oral Argument on 1/17/24 in Supreme Court Cases on the Future of Deference (1/16/24)

Oral argument in the cases (Loper Bright and Relentless, combined for oral argument) challenging Chevron deference is Wednesday, January 17. The relevant links are:

• Oral Argument Live, here (these are the only cases docketed for oral argument, so the oral argument should begin at 10am  EST).
• Recording of Oral Argument, here (listed under 22-451 Loper Bright Enterprises, Inc. v. Raimondo, Sec. of Comm. and 22-1219 Relentless, Inc. v. Dept. of Commerce.
• Transcripts of Oral Arguments (these are subject to change):
• Loper Bright, here.
• Relentless, here.

I thought I would use this blog to alert readers to some hyperbolic claims likely to appear in the oral argument (as they have proliferated in the press). (George Will, no fan of the administrative state or of Chevron, has said that “Hyperbole [is] the default setting in today’s discourse.” George F. Will, How the Supreme Court could end the ‘Chevron deference’ foolishness (WAPO 1/12/24), here (the claims he makes in his article prove the ubiquity of hyperbole).

Before addressing the hyperbole likely to appear in oral argument, I think it is helpful to establish what deference is:

Deference is commonly stated as a court applying an agency interpretation that reasonably interprets ambiguous statutory text within the scope of the ambiguity. Deference is more subtle than that. Deference is neither required nor applicable if the agency interpretation is the best interpretation (best interpretations are per se reasonable, after all). Rather deference only occurs when the agency’s reasonable interpretation is not the best; only then can a court defer to that not-best agency interpretation. (This does not address the phenomenon of the state of interpretive equipoise which I discuss in paragraph 4 below,)

 Now, to the hyperbole:

1. The hyperbole: Deference was the creation of the Chevron case decided in 1984. George Will says, “first propounded by the court in 1984.” That statement is not only hyperbole, it is false. Deference to reasonable agency interpretations of ambiguous statutory text has been a feature of authoritative judicial decisions since at least the 1920s. All Chevron did was to (i) articulate an additional rationale for deference in the executive branch’s more direct accountability to the citizens than courts with lifetime appointments and no constituency and (ii) permit the famous 2-Step, which later courts found implicit in Chevron. (Since deference was the same as prior deference, the 2-Step formula was implicit in pre-Chevron deference.)

2. The hyperbole: Deference confers “vast discretion barely circumscribed by Congress.” George Will, supra. The reasonable requirement circumscribes the agency’s discretion; the requirement of reasonableness hardly permits vast discretion. If a court determines that the best interpretation is not the agency interpretation, query what are the chances that the court will nevertheless apply the not-best agency interpretation? As formulated, Chevron seems to permit the not-best agency interpretation to prevail so long as it is reasonable. But, in order to apply the best interpretation rather than the not-best agency interpretation, all the court has to determine is that the agency interpretation is not reasonable. (There are other outs from deference, such as major questions and so-called Chevron Footnote 9 rigorous analysis at Step One.) Think about that and imagine in the real world judging how often a court would defer to the not-best agency interpretation because the agency interpretation is reasonable. My anecdotal review of two large sets of Courts of Appeals opinions in recent years indicates that there is far less actual deference going on than the commotion about Chevron would indicate. I urge readers to be skeptical about claims that Chevron real deference is ubiquitous.

3. The hyperbole: APA § 706 requires courts to interpret statutes de novo without deference. False. I have covered that issue in an article. The Tax Contribution to Deference and APA § 706 (December 14, 2023 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4665227).

My suggested deference refinement without hyperbole:

If the Court revises the deference construct, I recommend it do so as follows which focuses on the work deference should do: 

A court should apply a reasonable agency interpretation of ambiguous statutory text (Step Two) if it cannot determine affirmatively that an alternative interpretation is the best; if it can determine that an alternative agency interpretation is the best, apply the alternative best interpretation rather than the not-best agency interpretation. 

This would allow deference where the agency interpretation is the best or is in a state of interpretive equipoise (in which case a court is not deferring to a not-best agency interpretation). I think that courts deferring to best agency interpretations and equipoise agency interpretations explains by far the bulk of Step Two resolutions, with only the rare, very rare (if any) Step Two outcome actually deferring to an agency not-best interpretation. (As I see it, equipoise in legal interpretation is a range of interpretive certainty, say from 40% to 60% certainty.)