Loper Brights Disingenuity

Loper Bright prompted a tidal wave of reaction throughout the legal community when the Supreme Court announced it was overruling Chevron, the most frequently cited Court decision in administrative law. But Loper Bright cannot mean what it says. This article identifies three respects in which the majority opinion’s claim to have overruled Chevron distorts the real substance of the Court’s logic. First, we apply Loper Bright’s framework to the facts of Chevron and show that it would have produced the same outcome—if nothing else, an exceedingly curious result if Chevron were indeed overturned. Second, even as applied to other cases, the Loper Bright framework does not truly depart from the Chevron framework. Chevron’s premise was that Congress had delegated the authority to interpret an ambiguous statutory term in an agency’s enabling statute to the agency. Loper Bright may eschew the word “deference” but without changing the underlying analysis. We show that this kind of wordplay is of little value in making institutional decisions about the allocation of authority. Finally, the very craft of the Loper Bright opinion betrays the perils of the exercise that Loper Bright demands of reviewing courts. Loper Bright instructs judges to identify the “best reading” of administrative statutes, suggesting that an even-handed exercise in recovering semantic meaning can identify extant lines of authority in the administrative state. But the decision rests on an interpretation of the Administrative Procedure Act that is itself selective and slipshod. Ultimately, Loper Bright’s formalist rhetoric turns out to mask what is going on under the hood. When judges substitute their views of what is “best” for those of agencies, arguments about statutory meaning can quickly succumb to choices about policy. Avoiding such an outcome, of course, was one of Chevron’s core aims.