More Nuance On Loper Bright's Adoption of the Notion that Courts Say What the Law Is (8/6/24)

In the originally posted version of the Federal Tax Procedure Editions (Practitioner and Student), I explained Loper Bright’s rejection of Chevron deference to agency interpretations as follows:

The key notion behind this holding is that, in the words of Justice Marshall’s famous soundbite, “[i]t is emphatically the province and duty  of the judicial department to say what the law is.” Marbury v. Madison,  5 U.S. (1 Cranch) 137, 177 (1803). The balance of the reasoning for Loper Bright is just spinning that notion.

Upon reflection, the explanation was too cryptic for those not deep into the Loper Bright weeds and what came before it. I therefore have revised that paragraph to read as follows (offering here the footnotes in the Practitioner version and noting the changes in red):

          The key notion behind this holding is that, in the words of Justice Marshall’s famous soundbite, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). The balance of the reasoning for Loper Bright is just spinning the notion n423a through APA § 706’s supposed command that courts “decide all relevant questions of law.” n423b
      n423a Professor Dorf says that, historically, the “say what the law is” notion in Marbury v. Madison accommodated judicial restraint –deference if you will. See Michael C. Dorf, How Emphatically is it the Province and Duty of the Judiciary to Say What the Law Is? (Dorf on Law 8/2/24), discussing “Thayerism” and judicial restraint to permit judicial intervention only in cases of clear violation of the text, an interpretive exercise compatible with deference, and concluding: 
  Yet neither Thayer nor those who followed in his footsteps thought his clear-incompatibility standard for invalidation of legislation violated Marbury. On the contrary, they understood it as what Marbury entailed. Thayerism thus validates the idea that the judicial province and duty to say what the law is can co-exist with a practice of deferring to non-judicial actors.
      n423b Striving to accommodate the above-quoted APA text to Marbury v. Madison’s “say what the law is” notion, the Supreme Court conveniently ignored the requirement in § 706(2)(A) that agency conclusions of law be set aside if “not in accordance with law.” As I develop in my article, The Tax Contribution to Deference and APA § 706, cited on p. 87 n. 422, the Court interpreted the “not in accordance with law” limitation on court review of Tax Court conclusions of law to require deference. Dobson v. Commissioner, 320 U.S. 489 (1943), reh. den. 321 U.S. 231 (1944). Indeed, the principal actors in the enactment of the APA just 3 years after Dobson would have known that the words “not in accordance with law” had been so interpreted to require deference. In this regard, Justice Robert Jackson’s opinion in Dobson interpreting those words echoes the Thayerism view that restraint (deference) not apply only for clear violations (Justice Jackson’s phrasing was “clear-cut violations”). In short, the Loper Bright Court strained to make the holding appear to be an APA holding on very weak grounds when, in fact, it was far more fundamentally about the majority’s view that courts alone say what the law is.

A pdf with the changes in the 2025 working draft is here (note that the footnotes in the pdf are numbered in order with the working draft).