I have just reviewed Eli
Nachmany, Deference Undisturbed, 101 Notre Dame L. Rev. 985 (2026), on
SSRN here.
The author focuses on the rather cryptic discussion of statutory stare decisis in
the Opinion of the Court (C.J. Roberts) in Loper Bright Enterprises v.
Raimondo, 603 U.S. 369 , 412 (2024), here
[Preliminary Print]:
By doing so [leaving deference behind in Loper Bright],
we do not call into question prior cases that relied on the Chevron framework.
The holdings of those cases that specific agency actions are lawful—including
the Clean Air Act holding of Chevron itself—are still subject to
statutory stare decisis despite our change in interpretive methodology.
The actual holding of Loper Bright was that,
going forward, courts must interpret statutes in agency interpretation cases de
novo rather than deferring to agency interpretations as Chevron (and,
really, Chevron predecessors dating to before the APA) allegedly allowed. Loper Bright's cryptic discussion of statutory stare decisis is dictum rather than a holding
and seems to be something textualists often claim to avoid—permitting
consequences of the interpretation to affect the interpretation of the text
that, under their claimed textual preference looks only to the text, the whole text,
and nothing but the text. (As Justice Kagan famously noted, textualists find a
way to avoid text when they choose to, using the Major Questions Doctrine, for
example, as a “get out of text free” card. West Virginia v. EPA, 597
U.S. 697, 779 (2022) (Kagan, J., dissenting).)
No one can doubt the disruption to a host of precedential statutory interpretations that would occur if Chevron deference could be litigated
anew based on Loper Bright. As Nachmany discusses in the article (p. 1010),
that cryptic statement was to stem the tide of the disruptive possibility.
Of course, the statement in Loper Bright is cryptic,
offering nothing that helps courts in the future decide which precedents are
entitled to statutory stare decisis and which are not. Perhaps it may be like
pornography: courts will know it when they see it. See Jacobellis v. Ohio,
378 U.S. 184, 197 n. 2 (1964) (J.
Stewart, concurring).
I discuss statutory stare decisis in my article. John A.
Townsend, Loper Bright Flip Flops on Chevron Deference: A Tax Lawyer's
Perspective, 79 Tax Law. 323, 391-397 (2026), SSRN here. In
this posting, I offer some discussion that is in more cryptic in my article
but inspired now by Nachmany’s article.
The issue that concerns me is to identify the holding
of the opinion a court would use for precedent. I do not address the issue of
what levels of precedent Loper Bright means its statement to apply (e.g.,
Supreme Court, Circuit Courts, or trial courts). At a minimum, everyone should recognize that Supreme Court adoption of agency interpretations under Chevron are precedential opinions for all judges to which the cryptic statement in Loper Bright might apply.
One thing that is certain is that the Loper Bright cryptic
statement requires that the precedent in question have applied Chevron deference. I illustrate with two examples.
Example 1. The prior opinion noised about Chevron
but when read fairly applied the agency interpretation as the best
interpretation rather than deferring to it over an opposing best interpretation.
This is a Chevron Step One case. Sometimes teasing out from the prior
opinions the real basis for the holding can be difficult, but courts having the
claimed facility for statutory interpretation should have some skills for interpreting potentially precedential opinions. (In this context the prior opinion is the law requiring
interpretation.) As I discuss in my article, many opinions, perhaps a majority,
that some view as Chevron cases really are not when analyzed closely
because they found the agency interpretation the best. (See discussion in the
article at 339-341, particularly at nn. 62-63.) Also, I have previously
reported on significant data sets of Courts of Appeals “Chevron”
holdings identified by others and found that clear Chevron holdings were
rare and some likely approved best agency interpretations even though they noised about Chevron. Chevron Step Two Reasonableness and Agency Best Interpretations in
Courts of Appeals (Federal Tax Procedure Blog 2/9/23), here;
and Is Chevron on Life Support; Does It Matter? (Federal Tax Procedure
Blog 4/2/22; 4/3/22), here. (Focus in each blog on Category 5.) This type of precedent should clearly qualify for statutory stare decisis as to
the holdings that (i) the statute is not ambiguous and (ii) the agency
interpretation is the best interpretation. These cases are not Chevron
cases.