SSRN Paper: Loper Bright Is the Law But Poor Statutory Interpretation (10/28/24; 1/20/25)

I have posted to SSRN the following paper: Loper Bright Is the Law But Poor Statutory Interpretation, available at SSRN here. The Abstract is:

While teaching law, I sometimes claimed that tax cases are too important to have the Supreme Court decide them. I had a list of tax cases to back up that claim. I have now expanded my list beyond tax cases to one administrative law case.

In Loper Bright Ent. v. Raimondo, 603 U.S. ___, 144 S. Ct. 2244 (2024), the Court pronounced that APA § 706, properly interpreted, requires that court review agency statutory interpretations de novo without deference. The claim rests on the opening words of § 706 coupled with a claim that, at the time of enactment of the APA, the courts did not defer to agency interpretations. Both claims are false, resting on poor scholarship of the history and law relevant to Congress’ meaning of § 706 at its enactment in 1946. One key is the Court’s perceived need to address the state of deference upon enactment of the APA. If the words of § 706 command de novo review, then what difference does it make what the state of deference was upon enactment of the APA?

In this article, I show that § 706, properly interpreted requires deference, because as enacted in 1946:

(i) the words of the APA, including the requirement in § 706(2)(A) that agency action be “held unlawful and set aside” only if “not in accordance with law,” a standard the Supreme Court held required deference in Dobson v. Commissioner, 320 U.S. 489 (1943) , and

(ii) the unquestioned understanding that § 706, upon enactment, applied the then-current state of review, which included deference.

Loper Bright failed to correctly assess the meaning of § 706. Loper Bright is the law, but, at a minimum, poor scholarship.

Added 1/18/25 2:30pm: I am experimenting with various AI tools. Today, I "asked" MS Co-Pilot to summarize the article linked in this blog.  I found Co-Pilot did only a fair summary, but missed subtle points. I have thus refined the Co-Pilot summary and offer here that summary as I have edited it to clarify key points in the article:

• Critique of Supreme Court Decision: The Supreme Court's decision in Loper Bright Ent. v. Raimondo is poor statutory interpretation.
• Rejection of Chevron Deference: Loper Bright rejected deference to agency legal interpretations, called Chevron deference after 1984, which had been a feature of Supreme Court cases since at least the early 1900s.
• Baseline for Deference: Under long-standing deference concepts, agency interpretations were only deferred to (i) when the court determined they were reasonable but not the best interpretations or (ii) when the court could not determine the best interpretation between reasonable alternatives including the agency interpretation. Agency interpretations that were the best interpretations neither needed nor received deference. (In the author's judgment, most cases appearing to defer were really in the latter category where the court applied the agency interpretation as best interpretation, thus mooting deference.)
• Failure in Statutory Interpretation: Loper Bright fails in its statutory interpretation, by misreading the historical context and legislative intent of APA § 706.
• Historical Context of Deference: Historical context shows that deference to agency interpretations was well-established when the APA was enacted in 1946, contrary to Loper Bright's claims.
• Role of Key Figures: Two key individuals served prominent roles in the enactment of the APA and support interpreting the APA to include deference. Those individuals are: (i) Robert H. Jackson both as Supreme Court Justice authoring Dobson (1943) and Skidmore (1944) and as a prominent player in the Attorney General 1941 Report; and (ii) Carl McFarland, important both in the Attorney General 1941 Report and enactment of the APA (McFarland is said to be the most important player in enactment of the APA).
• Misinterpretation of Case Law: Loper Bright misinterprets case law from the 1940s, which actually supported deference rather than rejecting it as Loper Bright claims.
• Dobson and Skidmore Cases: Dobson and Skidmore, authored by Justice Jackson, are robust statements of deference to agency interpretations, with Skidmore stating deference for notice and comment regulations of the type required for Chevron deference, which Loper Bright fails to acknowledge.
• APA § 706 “Not in Accordance with Law” Standard. APA § 706 includes a requirement that agency action be “held unlawful and set aside” only if “not in accordance with law,” a standard Justice Jackson held for a unanimous Supreme Court in Dobson to require deference to agency interpretation.
• Beyond the Proper Interpretation of APA § 706. In addition to erring on the proper interpretation of APA § 706, Loper Bright makes two other key errors. First, Loper Bright, claims that statutes governing agency administration always have a single, best meaning. Second, Loper Bright errs in asserting that agencies lack special competence in statutory interpretation in resolving statutory ambiguities in the statutes Congress assigned them to administer.

Added 1/20/25 3:30pm: I also asked NotebookLM, a Google AI tool here, to summarize the article. That summary is a bit long so I offer here a link to a pdf of the summary. The result is significantly longer than Co-Pilot, but with more nuance than Co-Pilot. Added 1/23/25 8:00am: I have made an important revision to the NotebookLM summary to provide Justice Jackson's key statement from Skidmore on robust deference to interpretive regulations before moving to "power to persuade" (rather than deference) for subregulatory interpretations. Most courts, including the Loper Bright Court, ignore that statement of robust deference (probably for the same reason they ignore Dobson--i.e., because Dobson's and Skidmore's statements of robust deference do not support their preferred version of no deference at the time of the APA).