ChatGPT and Loper Bright Misread Chevron Footnote 11 to Have Permitted Chevron Deference Over an Opposing Best Interpretation (10/7/26; 10/8/26)

Yesterday, I posted on Loper Bright’s Cryptic Statement of Statutory Stare Decisis for Chevron Precedents – And Giving Chevron a Bad Rap (Procedurally Taxing Blog 10/6/26), here. After I posted, I asked ChatGPT Plus (hereafter just ChatGPT) the following:

This is a blog entry that I wrote today. Please re-write it to make it tighter and cite appropriate authority. [I copied and pasted the blog entry]

Yesterday evening I posted at the bottom of the blog a link to a pdf of the ChatGPT comments and re-write along with some of my comments to ChatGPT’s response. I also offer that pdf link here and the ChatGPT link is here (omitting my comments). I think one of ChatGPT’s critiques of my blog should be elevated to a separate blog because it is so important. Here is the key critique having to do with Chevron footnote 11 (note ChatGPT is speaking in the first person).

I would revise the final argument about Chevron. Chevron itself, especially footnote 11, expressly contemplated upholding an agency interpretation even when it was not the interpretation the court independently would have selected. Your stronger empirical point is that this theoretical feature of Chevron should not be confused with proof that courts actually and frequently rejected what they regarded as the best interpretation in favor of an inferior agency interpretation. Barnett and Walker do not establish that proposition.

Back to JAT speaking for myself in the first person:

1. The key point I [JAT] was making was that Chevron required ambiguity where a court could determine only that competing interpretations were in the zone of ambiguity of the statutory text but could not determine which interpretation is best. So, with that point (which really when carefully considered covers the rest of my analysis), here is the rest:

2. ChatGPT Plus rightly points out that Chevron footnote 11 said: “The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.” (467 U.S., at 843 n. 11.) My problem is that, in the Chevron text to which that footnote applies, the Court says and I repeat the text and footnote to contextualize (I bold-face key words)

If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.11
[11] The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding. FEC v. Democratic Senatorial Campaign Committee, 454 U. S., at 39; Zenith Radio Corp. v. United States, 437 U. S. 443, 450 (1978); Train v. Natural Resources Defense Council, Inc., 421 U. S. 60, 75 (1975); Udall v. Tallman, 380 U. S. 1, 16 (1965); Unemployment Compensation Comm'n v. Aragon, 329 U. S. 143, 153 (1946); McLaren v. Fleischer, 256 U. S. 477, 480-481 (1921).

3.  I think a fair reading of that text (as opposed to the footnote) is that, in all events the agency interpretation and the competing interpretation must be in the zone of ambiguity where a court cannot tell which is best. If the court can determine the best interpretation, it should not get past what came to be known as Chevron Step One where no deference is given and the best interpretation is applied.

4. What to make of footnote 11? If paragraph 2 above states a truism, then footnote 11 makes perfect sense. Footnote 11 simply addresses a hypothetical where the court initially makes the interpretive choice in the zone of ambiguity without any deference to the agency interpretation. In that hypothetical, each interpretation would be considered on the interpretive merits and neither interpretation would have the advantage of deference or any other default. The court would be compelled to pick one or the other to resolve the case. (It is not clear to me how the court could make a principled decision in that type of interpretive deadlock where the law recognizes that a default rule must apply—like lenity or even burden of proof where a party has failed to prove the proper interpretation of the law required to prevail.) But, in the hypothetical footnote 11 poses, the court would have to pick one interpretation or the other to resolve the case, not because either was best or not best but because the court could not tell best or not best but had to apply some interpretation (the role for a default interpretive rule such as lenity and Chevron). All Chevron did was to give the default to the agency, even if in the hypothetical the court might have defaulted to the opposing interpretation just to resolve the case. That footnote does not mean that a court able to determine the best interpretation could get past Chevron Step One. Yet that is the way some read it—without thinking it through—including the C.J. Roberts in the opinion of the Court in Loper Bright. And, of course, in actual practice, courts able to determine (or imagine they determined) the best interpretation almost always found enough outs from Chevron Step Two actual deference to apply their real or imagined best interpretations.

5. What Footnote 11 did not do or even fairly read purport to do is say that Chevron’s requirement of ambiguity—inability to determine the best interpretation—did not apply when the court could determine the opposing interpretation was best. That is  an oxymoron in Chevron’s analysis because it is patently inconsistent with Chevron and, in that sense, nonsense.

6. Of course, I have other problems with Loper Bright that are presented 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.

7. Finally, much of this may be redundant but as to the synthesis of Chevron’s ambiguity requirement and Footnote 11, not so redundant that it is not worth repeating. At least in C.J. Roberts case in Loper Bright in his claim that courts can read statutes best; that's a false claim (see my article pp. 390-391) and apparently cannot read cases best either.

Added 10/8/26 4:45pm:

I noted above that it was not clear to me in the hypothetical posed by Chevron Footnote 11 (where the two interpretations are within the zone of ambiguity with neither being best), the court could determine which interpretation to apply. The court would have to be arbitrary in making that decision because there is no principled way to make the decision. Any arbitrary test will not be consistent (unless it is a default rule like lenity or Chevron requiring consistency). A classic arbitrary “decider” is the coin flip. With coin flips that would mean that over time in an agency interpretation contests, the agency interpretation would win about 50% and the opposing interpretation about 50%. With Chevron as a default rule, the agency interpretation wins 100% of the time. So, Chevron footnote 11 correctly observes correctly that in some cases without Chevron as a default rule, the opposing interpretation would win in some cases where with Chevron the agency wins. That is all that Chevron footnote 11 says in the context of the text to which the footnote applies. But the key point is that with Chevron’s requirement of ambiguity, Chevron never, ever properly applied to permit a court to apply Chevron deference over the opposing best interpretation. And, as Judge Newman and others and my anecdotal analysis of significant size data sets of so-called Chevron cases, the courts were not deferring to agency interpretations over best opposing interpretations.