Townsend ABA Tax Lawyer Article Titled Loper Bright Flip Flops on Chevron Deference: A Tax Lawyer's Perspective (8/28/26)

I have posted to SSRN my recent article in the ABA Tax Lawyer: John A. Townsend, Loper Bright Flip Flops on Chevron Deference: A Tax Lawyer's Perspective, 79 Tax Law. 323 (2026). The SSRN citation and link is: Townsend, John A, Loper Bright Flip Flops on Chevron Deference: A Tax Lawyer's Perspective (January 01, 2026), SSRN at: https://ssrn.com/abstract=7360440 [Note: I have slightly changed the SSRN "suggested citation" to eliminate duplicating my name (don't know why that happens) and shortened the reference to SSRN.]

One of the themes I develop in the article is that Chevron was not about deferring to an agency interpretation that was not the best interpretation. Rather, Chevron was about “deferring” to an agency interpretation when the court found the statute ambiguous, meaning that the court was in equipoise as to the best interpretation. Loper Bright flogged the false notion that Chevron permitted/required courts to defer to the agency "not best" interpretation over the competing "best" interpretation. Courts, particularly judges of Federalist Society bent, also flog that false notion ad nauseum. E.g., yesterday, I read Piedra v. Blanche, ___ F.4^th ___ (4^th Cir. 8/24/26), CA4 here and GS here, which starts off (Slip Op. 3):

For decades, Chevron deference restricted courts from exercising their duty "to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). Newly freed from that restraint, courts now exercise their independent judgment about the best meaning of statutes.

To repeat, Chevron required courts to apply the best interpretation at Step One; if, after rigorous interpretation (Chevron footnote 9) the statute was still ambiguous, only then did courts “default” in equipoise to the agency interpretation. But that default was not applying the "not best" interpretation. Of course, I flog my criticism of Loper Bright in the article, pp. 339-341.

So, after Loper Bright, the problem for which Chevron applied a default rule still exists when a court, being honest with itself, cannot determine whether the agency interpretation or the (or any) competing interpretation is the best—a state of ambiguity (or equipoise). In the article, I develop this issue in a footnote (p. 346 n. 87 emphasis supplied):

87 As we know from equipoise in fact-finding, merely because a case must be resolved does not mean that equipoise cannot exist. Fact-finders have burdens of persuasion to deal with equipoise and permit the case to be resolved. As noted above, Chevron deference operated in the state of legal interpretive equipoise and thus served a function like burden of persuasion, permitting the trier of fact to resolve the case at hand. With Chevron deference’s demise, it is not clear how a court would get past legal interpretive equipoise if it could exist (as I think it can). The court would have to resolve the case and thereby artificially create the best interpretation. But how does a court do that in a state of legal interpretive equipoise? Flip a coin? Consult a soothsayer? Ouija board? Or, more likely, follow its policy or gut preferences or perhaps a best guess? Ryan Doefler, How Clear is Clear, 198 VA. L. REV. 651, 664 (2023) (where “investigations into statutory meaning come up empty,” one solution is “for a court to give its ‘best guess.’”) Even Justice Scalia, who claimed the ability to determine “best” statutory interpretations, admitted as follows:

If nature knows of such equipoise in legal arguments, the courts at least do not. The judicial task, every day, consists of finding the right answer, no matter how closely balanced the question may seem to be. In appellate opinions, there is no such thing as a tie. If the judicial mentality that is developed by such a system were set to answering the question, “When are the arguments for and against a particular  statutory interpretation in equipoise?,” I am certain that the response would be “almost never.”

Scalia, supra note 42, at 520 (emphasis added) [Note: the Scalia reference is to Scalia's famous full-throated defense of Chevron in  Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L. J. 511.]

[Full disclosure, I omit the Gilbert & Sullivan analogy in the footnote to the Captain’s famous ditty in HMS Pinafore that he “never” uses bad language but when pressed he admits “hardly ever.”]