Chevron Was Not, and Cannot Be, Overruled: The Dullness of Loper Bright

As expected, the Supreme Court declared, in Loper Bright Enterprises. v. Raimondo, that "Chevron is overruled." But the Court did not understand the decision that it claimed to overrule. It focused its criticisms on Chevron's notorious two-step test, but failed to recognize that the decision is a major conceptual advance – the first clear judicial recognition that statutory interpretation is the initial and invariably necessary stage in the process by which administrative agencies enforce the law. Chevron thus revealed a reality that the current Court is powerless to alter. Most administrative statutes are not the normative declarations of the pre-administrative era, but rather instructions to an agency that enable it to implement a social policy. Statutes of this type simply cannot be interpreted by a reviewing court de novo because most of their provisions do not state obligatory rules, but grant discretion to an agency, thereby empowering that agency to formulate the legal requirements that apply to private parties. The Loper Bright decision concedes this, as it must, which renders its opinion incoherent and ineffective. While it will certainly lead to reversals of particular administrative regulations that would previously have been upheld, it cannot change the basic features of our modern administrative state. The opinion also fails to recognize the essential character of appellate review for administrative decisions, which is not to be part of the primary enforcement process, as it would be for a traditional, court-enforced statute, but to exercise collateral supervision of a separate institution staffed by officials with different training and expertise. This second reality will contribute to the ineffectiveness of Loper Bright because most conscientious courts will simply decline to second-guess the complex and technologically specialized decisions that agencies enact in the course of their enforcement process. Ironically, Loper Bright may inadvertently amplify Chevron's impact in many situations. By abolishing the decision's two-step test, the Court has dispensed with the term "ambiguity," an unfortunate misnomer, and allowed reviewing courts to recognize that legislative delegations to agencies are more properly described as "open-ended" – purposeful delegations to the agency rather than an inaccurate use of language.