Document Type
Conference Proceeding
Publication Title
George Mason Law Review
Publication Date
2024
ISSN
1088-5625
Page Number
499
Keywords
judicial deference, agency, statutory language, textualism
Disciplines
Agency | Law
Abstract
If Loper Bright Enterprises v. Raimondo overrules or ousts Chevron U.S.A., Inc. v. National Resources Defense Council, Inc., its “consequences will be enormous, and almost uniformly bad.” The decision will instantly destabilize federal law across all sectors of the national economy. It also will undo another longstanding precedent and reinforce the public’s negative perception of the Court. These effects are certain, and they are reason enough not to dislodge a bedrock principle. Less certain are Loper Bright’s precise effects on judicial deference and agency authority. Those effects depend on the new rule that emerges, as to which Court-watchers can now only place bets. The rule may reemphasize a reviewing court’s responsibility to decide all questions of law, replacing judicial deference to agency interpretations with de novo review, perhaps instructing courts to consult agency interpretations for guidance under certain conditions. The rule may reinforce a reviewing court’s obligation to ensure that Congress has delegated the authority that the agency asserts, perhaps imposing a “clearer statement” rule—requiring Congress to delegate the asserted authority more expressly than courts have previously demanded. The rule may require more than a general grant of authority to implement a regulatory program plus legislative “silence” concerning a particular requirement that the agency chose for that purpose, as in Loper Bright itself. This Article offers a prediction, or perhaps a hope: whatever rule Loper Bright announces or ushers in, the decision ultimately may have less practical effect in the lower courts than expected.
Recommended Citation
Lisa Schultz Bressman,
Lower Courts After Loper Bright, 31 George Mason Law Review. 499
(2024)
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/1598