# Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR48320 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** December 31, 2024 - **Citation:** R48320 ## Text Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law December 31, 2024 Congressional Research Service https://crsreports.congress.gov R48320 SUMMARY Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law “Chevron is overruled”: On June 28, 2024, the Supreme Court overruled the Chevron framework in Loper Bright Enterprises v. Raimondo, holding that the Chevron framework violated Section 706 of the Administrative Procedure Act (APA). The Chevron framework required courts to defer to reasonable agency interpretations of ambiguous statutes. In its place, the Court directed the judiciary to exercise its independent judgment to determine the meaning of federal statutes. R48320 December 31, 2024 Benjamin M. Barczewski Legislative Attorney The Chevron framework was named for the case that articulated it, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. For four decades, the Chevron case, and the framework that grew out of it, was one of the foundational decisions in administrative law, governing the relationship between agencies and courts in matters of statutory interpretation and acting as a backdrop against which Congress has legislated. The Chevron framework typically applied if Congress had given an agency the general authority to make rules with the force of law. If a court determined that Chevron governed its analysis, at step one it would determine whether Congress directly addressed the precise issue before the court. If the statute was clear on its face with respect to the issue before the court, the court was to implement Congress’s stated intent. If the court concluded instead that a statute was silent or ambiguous with respect to the specific issue, the court then proceeded to Chevron’s second step. At step two, courts were required to defer to an agency’s reasonable interpretation of the statute regardless of whether the court would adopt that interpretation on its own were it to have reviewed the statute without the benefit of the agency’s interpretation. The Chevron framework rested on several related assumptions, including that (1) statutory ambiguity indicates a congressional delegation of interpretive authority, (2) agencies have more expertise than courts do to interpret the statutes they administer, and (3) agencies are politically accountable and therefore have more claim to make policy than courts do. The APA’s Section 706, the Court held in Loper, codified existing judicial review practice at the time of its enactment in 1946. Recounting a long line of cases going back to the beginning of the 19th century, the Court explained that the federal courts always understood their role as the final arbiters of the meaning of statutes. Given this history, the Court took specific aim at Chevron’s first presumption—that statutory ambiguities indicate implicit delegation of interpretive authority to an agency. This presumption, the Court held, violated the APA’s “unremarkable yet elemental proposition … that courts decide legal questions by applying their own judgment.” Despite the Court’s direction that courts are obligated to exercise their independent legal judgment, the Court emphasized several times that the executive branch’s views on the meaning of a statute should be given “weight” or “respect” under certain circumstances outlined by the 1944 Supreme Court case Skidmore v. Swift & Co. The Court’s emphasis on the judiciary’s role to render independent legal judgment on the best meaning of a statute, moreover, does not preclude a court from concluding that a particular statute has vested the agency with discretion. Where Congress has vested an agency with delegated authority, courts must still ensure that the agency has stayed within “the boundaries of the delegated authority and … the agency has engaged in ‘reasoned decisionmaking’ within those boundaries.” Exactly how Congress, the executive branch, and the judiciary will react to the Loper decision is still an open question. In broad terms, Loper will likely have a much greater effect in the lower courts than at the Supreme Court, as the Supreme Court did not defer to an agency interpretation under Chevron since 2016. The lower courts, however, relied on the framework until the day Chevron was overruled. Whether agencies will lose more cases before the courts is another open question. Some evidence of the effect of Chevron on the lower courts indicates that overruling Chevron may depress agency successes in the lower courts where an agency interpretation of law is at issue. Nonetheless, in the absence of Chevron, courts may rely more heavily on Skidmore weight or find more readily that statutes delegate authority to agencies, thereby limiting agency losses in court. Further, Chevron did not apply to all agency actions—only to agency interpretations of statutes. Exercises of statutorily delegated policy discretion are (and will continue to be) reviewed under the APA’s deferential arbitrary and capricious standard. The extent to which Loper will affect the way agencies regulate and Congress legislates is yet to be seen. The Loper decision does not legally bind the executive branch or Congress—it directs courts how to resolve cases of statutory interpretation. Loper will likely have an indirect effect on each branch, however. Agencies may respond to Loper by drafting their interpretations to better mirror the way courts interpret statutes and limit expansive interpretations of the statutes they administer. Congress may respond by drafting more specific statutes, codifying Chevron or Loper, or using more express delegations in statutes. Congressional Research Service Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law Contents Introduction ..................................................................................................................................... 1 The Chevron Framework ................................................................................................................. 2 The Loper Decision ......................................................................................................................... 2 Judicial Practice Before Enactment of the APA ........................................................................ 3 The APA and Chevron’s Presumptions...................................................................................... 4 Statutory Interpretation Under Loper ........................................................................................ 5 Application of the Skidmore Standard ................................................................................ 6 Delegations to Agencies and Statutory Interpretation......................................................... 6 Stare Decisis and Cases Decided at Chevron Step Two ............................................................ 8 The Dissent ...................................................................................................................................... 8 Implications for the Federal Judiciary ............................................................................................. 9 The Supreme Court ................................................................................................................. 10 The Lower Courts .................................................................................................................... 11 The De Novo Standard of Review, Methods of Statutory Interpretation, and Statutory Ambiguity ............................................................................................................................ 13 Methods of Statutory Interpretation .................................................................................. 14 Statutory Ambiguity .......................................................................................................... 17 Skidmore Weight ..................................................................................................................... 20 Analyses of Skidmore Pre-Loper ...................................................................................... 22 Post-Loper Applications of Skidmore ............................................................................... 24 Delegations from Congress ..................................................................................................... 25 Policy Discretion, Mixed Questions of Law and Fact, and Arbitrary and Capricious Review ................................................................................................................................. 27 Relationship with other Doctrines of Judicial Review ............................................................ 30 Major Questions Doctrine ................................................................................................. 30 Auer (Kisor) Deference ..................................................................................................... 33 Further Litigation: Prior Chevron Cases ................................................................................. 35 The Process of Relitigating Prior Chevron Cases ............................................................. 37 Tennessee v. Becerra: Stare Decisis and Loper Applied ................................................... 40 Interactions with Corner Post, Inc. v. Board of Governors of the Federal Reserve System............................................................................................................................ 41 Implications for Executive Branch Agencies ................................................................................ 42 Considerations for Congress.......................................................................................................... 45 Legislative Productivity .......................................................................................................... 45 Legislative Specificity ............................................................................................................. 46 Codifying Chevron or Loper ................................................................................................... 47 Delegations to Agencies .......................................................................................................... 49 Figures Figure 1. Geographic Boundaries of the Federal Courts ............................................................... 38 Figure 2. Hierarchy of the Federal Court System.......................................................................... 39 Congressional Research Service Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law Contacts Author Information........................................................................................................................ 49 Congressional Research Service Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law Introduction On June 28, 2024, the Supreme Court overruled the Chevron framework in a pair of cases, Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce (collectively Loper).1 The Chevron framework—named for the case that articulated it, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.—required federal courts to defer to federal agencies’ reasonable interpretations of ambiguous statutory provisions the agencies administer.2 For four decades, the Chevron case, and the framework that grew out of it, has been one of the foundational decisions in administrative law, governing the relationship between agencies and courts in matters of statutory interpretation and acting as a backdrop against which Congress has legislated. As one legal scholar put it: Chevron “is the most talked about, most written about, most cited administrative law decision of the Supreme Court. Ever.”3 For the past decade or so, however, Chevron had come under increasing fire from some corners of the federal judiciary and legal academia.4 Once cited often and approvingly by a majority of Supreme Court Justices, Chevron fell into desuetude at the Court.5 Over the past several terms, the Court has declined to apply or even cite Chevron in cases where it may once have governed.6 Other methods of statutory interpretation, such as the major questions doctrine, appear to have displaced Chevron, at least in some instances.7 Chevron’s absence at the Court has not gone unnoticed, with several Justices commenting on Chevron’s absence as evidence that it should be overruled.8 Against this backdrop, the Court explicitly overruled the Chevron framework, holding that it violates Section 706 of the Administrative Procedure Act (APA).9 For cases that fall within the ambit of the APA, Section 706 requires courts reviewing agency actions to “decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.”10 The majority held that the APA’s command required courts to exercise their own independent judgment on the meaning of federal statutes, but Chevron required courts to defer to reasonable agency interpretations of ambiguous statutes.11 That deference requirement, the Court held, abdicated the judiciary’s foundational function to 1 144 S. Ct. 2244 (2024). 2 467 U.S. 837, 843 (1984), overruled by Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024). 3 Ronald A. Cass, Chevron—Complicated, Start to Finish, 23 FEDERALIST SOC’Y REV. 265, 265 (2022). 4 See Pereira v. Sessions, 585 U.S. 198, 221 (2018) (Alito, J., dissenting) (writing that Chevron is now an “increasingly maligned precedent” that the Court feels comfortable “simply ignoring”); Buffington v. McDonough, 143 S. Ct. 14, 22 (2022) (Gorsuch, J., dissenting from denial of certiorari) (arguing that that Chevron “deserves a tombstone no one can miss.”). Prior to being appointed to the Supreme Court, Justice Kavanaugh raised concerns that Chevron was conceptually muddled, while Chief Justice Roberts had suggested that Chevron should be significantly narrowed. See Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 HARV. L. REV. 2118, 2136 (2016); City of Arlington v. FCC, 569 U.S. 290, 323–27 (2013) (Roberts, C.J., dissenting) (advancing a narrower theory of Chevron). For a survey of academic literature criticizing Chevron deference, see Christopher J. Walker, Attacking Auer and Chevron: A Literature Review, 16 GEO. J.L. & PUB. POL. 103 (2018). 5 See Kristin E. Hickman & Aaron L. Nielson, Narrowing Chevron’s Domain, 70 DUKE L. J. 931, 1000 (2021). 6 See Loper, 144 S. Ct. at 2271 (stating that the Court has not deferred under Chevron since 2016). 7 See Buffington, 143 S. Ct. at 22 (Gorsuch, J., dissenting from denial of certiorari); CRS Legal Sidebar LSB11084, Clear Statement Rules, Textualism, and the Administrative State, by Benjamin M. Barczewski and Valerie C. Brannon (2023); CRS In Focus IF12077, The Major Questions Doctrine, by Kate R. Bowers (2022). 8 See, e.g., Buffington, 143 S. Ct. at 22 (Gorsuch, J., dissenting from denial of certiorari); Pereira v. Sessions, 585 U.S. 198, 221–22 (2018) (Alito, J., dissenting). 9 Loper, 144 S. Ct. at 2263. 10 5 U.S.C. § 706(2). 11 Loper, 144 S. Ct. at 2266. Congressional Research Service 1 Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law “say what the law is.”12 Although the petitioners in Loper also challenged the Chevron framework on constitutional grounds, the majority’s opinion did not address those arguments.13 The Chevron Framework The Chevron framework required a court to defer to an executive agency’s interpretation of an ambiguous statute that it administers so long as the agency’s interpretation was reasonable.14 The framework’s namesake 1984 Supreme Court case, Chevron U.S.A. v. Natural Resources Defense Council, set out a two-step process for determining whether a court must defer to an agency’s statutory interpretation.15 The Chevron framework typically applied if Congress had given an agency the general authority to make rules with the force of law.16 If a court determined that Chevron applied, at step one it would use the traditional tools of statutory construction to determine whether Congress directly addressed the precise issue before the court.17 If the statute was clear on its face with respect to the issue before the court, the court was to implement Congress’s stated intent.18 If the court concluded instead that a statute was silent or ambiguous with respect to the specific issue, the court then proceeded to Chevron’s second step.19 At step two, a court was required to defer to an agency’s reasonable interpretation of the statute regardless of whether the court would adopt that interpretation on its own were it to have reviewed the statute without the benefit of an agency’s interpretation.20 The Chevron framework rested on several related assumptions, including that (1) statutory ambiguity indicates a congressional delegation of interpretive authority, (2) agencies have more expertise than courts do to interpret the statutes they administer, and (3) agencies are politically accountable and therefore have more claim to make policy than courts do.21 The Loper Decision The Supreme Court’s decision to overrule the Chevron framework relied exclusively on Section 706 of the APA. The APA generally governs judicial review of agency actions.22 Section 706 of the APA states “the reviewing court shall decide all relevant questions of law.”23 12 Id. at 2257 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). 13 Brief for Petitioners at 24, Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024) (No. 22-451). 14 See Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). 15 Id. 16 See United States v. Mead Corp., 533 U.S. 218, 226–27 (2001). 17 Chevron, 467 U.S. at 843 n.9. 18 Id. 19 Id. at 843. 20 Id. at 844–45, 865–66. 21 Id. Justice Scalia later expressed another justification for Chevron deference, rooted in the history of federal court review of agency action before passage of the federal question jurisdiction statute in 1875. See United States v. Mead Corp., 533 U.S. 218, 241–42 (2001) (Scalia, J., concurring) (asserting that the Chevron decision “was in accord with the origins of federal-court judicial review,” because a court would issue “the prerogative writ of mandamus” only if the executive officer “was acting plainly beyond the scope of his authority.”). 22 5 U.S.C. §§ 701–706. 23 Id. § 706. Congressional Research Service 2 Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law Judicial Practice Before Enactment of the APA Section 706, the Supreme Court held, codified existing judicial review practice at the time of its enactment in 1946.24 Recounting a long line of cases going back to the beginning of the 19th century, the Court explained that the federal courts always understood their role to be the final arbiters of the meaning of statutes.25 The Court began by quoting the now famous statement from the seminal 1803 case Marbury v. Madison that “it is emphatically the province and duty of the judicial department to say what the law is.”26 Although Marbury embodied the “Framers’ understanding” of the role of the federal judiciary, the judiciary also historically “accorded due respect” to the views of the executive branch entrusted with administering a statute.27 That respect was “especially warranted” where the executive branch’s interpretation was roughly contemporaneous with the enactment of the statute.28 Agency interpretations that warranted judicial respect, however, “could inform … but did not supersede” the judgment of a court on a question of law.29 The Court acknowledged that it appeared that some cases decided before the enactment of the APA had applied various deference doctrines. Those cases, however, as understood by the Court, did not shift the foundational role of the courts, nor did they apply anything like the deference required under Chevron.30 In a pair of pre-APA cases from the 1940s, National Labor Relations Board (NLRB) v. Hearst Publications, Inc.31 and Gray v. Powell,32 the Court applied what the Loper majority called “deferential review”—but only insofar as Congress had empowered the agency to determine the meaning of the statute.33 In Hearst Publications, for example, the Court deferred to the NLRB’s determination that newsboys were “employees” within the meaning of the National Labor Relations Act.34 Deeming the newsboys (who were actually adult men) “employees” provided them the opportunity to engage in collective bargaining with their employer, Hearst Publications.35 The Court concluded that the task of defining employee was “assigned primarily to the agency created by Congress to administer the Act.”36 The NLRB, the Court held, had “[e]veryday experience in administering the statute” and “familiarity with the circumstances and backgrounds of employment relationships in various industries.”37 24 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2261 (2024). 25 Id. at 2257–60. 26 Id. at 2257 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). 27 Id. The Court cited another of its early nineteenth-century cases, Edwards’ Lessee v. Darby, for the proposition that from the very beginning of the Republic, courts accorded contemporaneous executive branch interpretations of “doubtful and ambiguous law ... very great respect.” 25 U.S. (12 Wheat.) 206, 210 (1827) (“In the construction of a doubtful and ambiguous law, the cotemporaneous [sic] construction of those who were called upon to act under the law, and were appointed to carry its provisions into effect, is entitled to very great respect.”) 28 Loper, 144 S. Ct. at 2258. 29 Id. 30 Id. at 2259. 31 322 U.S. 111 (1944). 32 314 U.S. 402 (1941). 33 Loper, 144 S. Ct. at 2259. 34 Hearst Publications, 322 U.S. at 129–30. 35 Id. at 113–14. 36 Id. at 130. 37 Id. “In making [the NLRB’s] determinations as to the facts in these matters conclusive, if supported by evidence, Congress entrusted to it primarily the decision whether the evidence establishes the material facts. Hence in reviewing (continued...) Congressional Research Service 3 Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law Gray was decided under similar circumstances. In that case, the Supreme Court found that Congress had “specifically granted the agency the authority to” determine whether a coal-burning railroad with contracts with several coal mines was a coal “producer” pursuant to the Bituminous Coal Act of 1937. The Gray Court held “[w]here as here a determination has been left to an administrative body, this delegation will be respected and the administrative conclusion left untouched.”38 The Loper majority reasoned that Hearst Publications and Gray are examples of deferential review “where application of a statutory term was sufficiently intertwined with the agency’s factfinding” rather than evidence that the Court had adopted generally applicable Chevron-like deference doctrines prior to the enactment of the APA.39 Gray and Hearst Publications, in the Court’s reasoning, were examples of an adjudication-like action of applying a statutory term to the particular facts before it.40 As a result, these cases, according to the Court, did not depart from the general rule at the time of the enactment of the APA that pure questions of law were to be answered by the courts—not agencies.41 The APA and Chevron’s Presumptions Given this history, the Supreme Court took specific aim at Chevron’s first presumption—that statutory ambiguities indicate implicit delegation of interpretive authority to an agency.42 This presumption, the Court held, violated the APA’s “unremarkable, yet elemental proposition … dating back to Marbury: that courts decide legal questions by applying their own judgment.”43 The majority explained that presumptions can be salutary but only where they approximate reality.44 Chevron’s presumption, the Court explained, does not approximate reality, “because ‘[a]n ambiguity is simply not a delegation of law-interpreting power. Chevron confuses the two.’”45 Instead, the Court held that, when confronted with a statutory ambiguity, a court should not defer to an agency’s interpretation but instead should do its “ordinary job of interpreting statutes, with due respect for the views of the Executive Branch.”46 the Board’s ultimate conclusions, it is not the court’s function to substitute its own inferences of fact for the Board’s, when the latter have support in the record.” Id. (citing NLRB v. Nev. Consol. Copper Corp. 316 U.S. 105 (1942)). 38 Gray v. Powell, 314 U.S. 402, 412 (1941). 39 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2260 (2024). 40 See id. at 2259–60. 41 Id. In The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State, Professor Thomas Merrill notes that one way to read Hearst Publications and similar cases is that the Court engaged in deferential review where the agency was engaged in applying the law to the facts before it (e.g., is a particular entity covered by a statutory term?)—not pure legal analysis. THOMAS W. MERRILL, THE CHEVRON DOCTRINE: ITS RISE AND FALL, AND THE FUTURE OF THE ADMINISTRATIVE STATE 39 (2022) [hereinafter THE CHEVRON DOCTRINE]. This view aligns squarely with the majority in Loper. 144 S. Ct. at 2259 (calling the agency actions in Hearst Publications and Gray “factbound”). If that is what in fact the Court was doing in Hearst Publications and Gray, then those cases do not necessarily stand for the proposition that the Court was engaged in something like a proto-Chevron analysis prior to the enactment of the APA. Nonetheless, Professor Merrill explains that Hearst Publications can also be understood to be an early instantiation of one of Chevron’s core assumptions—that ambiguities are implicit delegations of interpretive authority. THE CHEVRON DOCTRINE 39-40. 42 Loper, 144 S. Ct. at 2265. 43 Id. at 2261. 44 Id. at 2265. 45 Id. (quoting Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405, 445 (1989)). 46 Id. at 2267. Congressional Research Service 4 Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law By sweeping away one of Chevron’s core assumptions about delegation, the majority declared that ambiguities in statutes pose questions of law, not questions of policy.47 In holding that the judiciary, not agencies, is to resolve statutory ambiguities, the majority explained that the Framers understood “the complexity of objects … the imperfection of the human faculties, and the simple fact that no language is so copious as to supply words and phrases for every complex idea,” yet they still expected politically insulated judges to exercise independent legal judgment in resolving statutory ambiguities.48 Statutory Interpretation Under Loper While the Supreme Court acknowledged that ambiguities in statutes surely exist, the majority held that a statute’s meaning was fixed at the time of enactment, permitting one and only one interpretation of the statute.49 The majority reasoned that poorly drafted, complex, or technical statutes are no different than statutes with clear or obvious meanings—they both have meanings fixed at the time of enactment that a court is obligated to give effect to.50 According to the majority, a court’s job is to find this single “best” meaning by applying the “traditional tools of statutory construction.”51 Courts apply these tools to resolve any potential ambiguity so that the law does not “run out” or leave a “gap” for agencies to fill.52 The Court itself did not list which tools it believes are included in the traditional tools of statutory construction.53 Methods of statutory interpretation and how Loper may interact with them will be discussed in more detail below.54 Regardless of the methods a court uses to interpret a statute, the Court was confident that the judiciary was up to the task of determining the best meaning of any statute. “Resolution of statutory ambiguities,” the Court explained, “involves legal interpretation. That task does not suddenly become policymaking just because a court has an ‘agency to fall back on.’”55 The majority stressed that courts resolve statutory ambiguities all the time when reviewing statutes that has agencies have not yet interpreted or in cases where agencies are not involved.56 In the Court’s view, the legal nature of questions of statutory interpretation do not change just because an agency happens to be involved.57 By characterizing the resolution of statutory ambiguities as a question of law, the Court swept away another one of Chevron’s presumptions—that ambiguities call for agency expertise.58 In light of the majority’s reasoning, there is no role for agency 47 Id. at 2267–68. 48 Id. at 2266 (quoting THE FEDERALIST NO. 37, at 236 (J. Madison) (J. Cooke ed. 1961). 49 Id. 50 Id. 51 Id. 52 Id. 53 See id. Similarly, while the Court suggested in Chevron itself that courts should use “traditional tools of statutory construction” at step one, it did not elaborate on what those tools are. Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984). 54 See infra “The De Novo Standard of Review, Methods of Statutory Interpretation, and Statutory Ambiguity.” For a longer discussion of statutory interpretation, see CRS Report R45153, Statutory Interpretation: Theories, Tools, and Trends, by Valerie C. Brannon (2023). 55 Loper, 144 S. Ct. at 2268 (quoting Kisor v. Wilkie, 588 U.S. 558, 575 (2019)). 56 Id. at 2266. 57 Id. 58 Id. at 2268. Congressional Research Service 5 Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law expertise to play in interpreting a statute because courts—not agencies—are experts in statutory interpretation.59 Application of the Skidmore Standard Despite the Supreme Court’s direction that courts are obligated to exercise their independent legal judgment, the majority emphasized several times that the executive branch’s views on the meaning of a statute should be given “weight” or “respect” under certain circumstances.60 As the Court explained, the views of the executive branch may, in the words of the 1944 Supreme Court case Skidmore v. Swift & Co., have the “power to persuade, if lacking the power to control.”61 Prior to Loper, Skidmore primarily applied to agency interpretations that were not eligible to be evaluated under the Chevron framework.62 The majority’s frequent reference to Skidmore and use of language from that decision suggest that, going forward, the Court may expect lower courts to look to Skidmore to guide their consideration of agencies’ preferred interpretations of ambiguous statutes. Skidmore does not require courts to defer to agencies but permits courts to give weight or respect to agency interpretations that the court considers persuasive.63 The Skidmore case itself laid out a list of factors for courts to consider when determining whether an agency’s interpretation commands the “power to persuade.”64 Under Skidmore, the rulings, interpretations and opinions of [an agency], while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.65 Skidmore has received far less attention from the courts than Chevron has and may need additional development by the courts to refine its application. How courts might apply Skidmore after Loper is discussed below.66 Delegations to Agencies and Statutory Interpretation The Loper Court’s emphasis on the judiciary’s role to render independent legal judgment on the best meaning of a statute does not preclude a court from deciding that a statute’s best meaning is that “the agency is authorized to exercise a degree of discretion.”67 The majority identified two forms of delegation in particular. 59 Id. 60 Id. at 2265 (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). 61 Id. at 2267 (quoting Skidmore, 323 U.S. at 140). 62 Kristen E. Hickman & Matthew D. Krueger, In Search of the Modern Skidmore Standard, 107 COLUM. L. REV. 1235, 1245–46 (2007), (summarizing the evolution of the Skidmore doctrine). 63 See Skidmore, 323 U.S. at 140. 64 Id. 65 Id. 66 See infra “Skidmore Weight.” 67 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2263 (2024). Congressional Research Service 6 Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law Express Delegations This discretion, the Court explained, could be provided by an express delegation to an agency from Congress to interpret a particular statutory term or phrase.68 The Court cited several statutes where Congress has expressly delegated interpretive authority to an agency.69 For instance, the Court cited a provision of the Fair Labor Standards Act, which states in relevant part: [A]ny employee employed on a casual basis in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary).70 According to the Court in Loper, the phrase as such terms are defined and delimited by regulations of the Secretary indicates that Congress delegated authority to the agency to define the terms referenced in that statutory provision. The Court’s requirement that courts give effect to a statute’s best meaning accordingly requires a court to respect Congress’s explicit choice of which branch—executive or judicial—has the authority to render a final and binding interpretation of a statutory provision.71 Delegations of Policy “Flexibility”72 In addition to expressly delegating interpretive authority to an agency to interpret a particular word or phrase, the Court also identified instances where Congress has delegated authority to an agency using terms or phrases “that ‘[leave] agencies with flexibility.’”73 The Court identified terms such as appropriate and reasonable as indications that Congress has delegated flexibility to the agency to make policy within “the boundaries of the delegated authority.”74 The Court cited additional examples of statutory language that delegates this kind of flexibility.75 For instance, the Court referred to the Clean Air Act, which states: “The Administrator shall regulate [power plants] … if the Administrator finds such regulation is appropriate and necessary.”76 In instances where such language is used, the majority reasoned that a court’s role is to “ensur[e] the agency has engaged in ‘reasoned decisionmaking’ within [statutory] boundaries.”77 68 Id. 69 Id. at 2263 nn.5–6. 70 29 U.S.C. § 213(a)(15) (emphasis added). 71 See Loper, 144 S. Ct. at 2263. 72 The Court identified another category where Congress delegates authority to an agency. The Court identified it as authority for an agency to “prescribe rules to ‘fill up the details’” of a statutory scheme. Id. (quoting Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825)). 73 Id. (quoting Michigan v. EPA, 576 U.S. 743, 752 (2015)). 74 Id. 75 Id. 76 Id. at 2263 n.6 (citing 42 U.S.C. § 7412(n)(1)(A)) (emphasis added). 77 Id. at 2263 (quoting Michigan, 576 U.S. at 750). The Court’s reference to “reasoned decisionmaking” may be a nod to a court’s role in reviewing an agency’s discretionary policy decisions, findings of fact, and exercise of its technical expertise under the APA’s arbitrary and capricious standard of review. See id.; 5 U.S.C. § 706(2); Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983). Under that standard, which will be discussed in more detail below, an agency must show that its decision was reasonable give the facts before it. State Farm, 463 U.S. at 43. Congressional Research Service 7 Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law Stare Decisis and Cases Decided at Chevron Step Two Although the Supreme Court overruled Chevron, it appears to have preserved the holdings in cases that were decided pursuant to the Chevron framework prior to Loper.78 In the briefing of the case and during oral argument, the litigants and some of the Justices discussed the fate of cases decided at Chevron step two.79 As explained above, at Chevron step two, a court must defer to an agency’s reasonable interpretation of an ambiguous statute.80 In such a case, a court has not made a specific ruling on what the statute means—it has left that determination to an agency in light of the court’s finding at step one that the statute is ambiguous.81 At oral argument, some of the Justices questioned the litigants about whether these step two decisions would still be considered binding if Chevron were overruled.82 Counsel for the petitioners argued that overruling Chevron would not disturb these cases because what the court had found at step two was that an agency’s interpretation was “lawful.”83 The Court appears to have adopted this argument in its opinion, holding that “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.”84 Despite the Court’s holding, questions are likely to remain about what circumstances allow a court to overrule a past decision in favor of an agency based on the application of step two of Chevron. That issue is taken up in more detail below.85 The Dissent The dissent, penned by Justice Kagan and joined by Justices Sotomayor and Jackson (the latter only with respect to the Relentless case),86 defended the Chevron framework on grounds that largely track those that supported the continued application of Chevron for the past four decades.87 Chevron, Justice Kagan wrote, is part of the “warp and woof of modern government” and “reflects what Congress would want”: politically accountable expert agencies—not judges— making policy.88 Justice Kagan, providing examples, explained that regulatory statutes often contain ambiguities or gaps (sometimes purposefully so) that cannot be resolved without the exercise of some kind of policymaking expertise that the courts simply do not have.89 Justice Kagan reasoned that statutes with such ambiguities or gaps have not fixed any “best” meaning at 78 Loper, 144 S. Ct. at 2273. 79 See Brief for Respondents at 31, Loper Bright Enters. v. Raimondo, 143 S. Ct. 2244 (2024) (No. 22-451); Transcript of Oral Argument at 59–61, Relentless, Inc. v. Dep’t of Commerce, 144 S. Ct. 2244 (2024) (No. 22-1219). 80 See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844–45 (1984). 81 See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs. 545 U.S. 967, 982 (2005) (holding “only a judicial precedent holding that the statute unambiguously forecloses the agency’s interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction”). 82 Transcript of Oral Argument at 59:8-61:7, Relentless, Inc. v. Dep’t of Commerce, 144 S. Ct. 2244 (2024) (No. 221219). 83 Id. 84 Loper, 144 S. Ct. at 2273. 85 See infra “Further Litigation: Prior Chevron Cases.” 86 Justice Jackson recused herself from Loper Bright Enters. v. Raimondo, 143 S. Ct. 2429 (2023), because she was on the panel that decided Loper Bright Enters. v. Raimondo, 45 F.4th 359, 363 (D.C. Cir. 2022), cert. granted in part, 143 S. Ct. 2429 (2023). 87 Loper, 144 S. Ct. at 2294 (Kagan, J., dissenting). 88 Id. 89 Id. at 2296–97. Congressional Research Service 8 Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law the time of enactment, and accordingly a court using the tools of statutory construction may find multiple possible readings for which the statute provides no rule of decision for a court to choose one over another.90 The judiciary’s role, Justice Kagan articulated, is only to ensure that an agency’s interpretation is a reasonable one, which ensures that courts stay out of policymaking.91 This limited role for courts, Justice Kagan stressed, is one of judicial “humility,” recognizing that agencies have a better claim to democratic legitimacy and more expertise in making policy than courts do.92 In other words, she explained, “agencies often know things about a statute’s subject matter that courts could not hope to.”93 Courts, Justice Kagan explained, can “muddle through” when asked to determine the meaning of an ambiguous statute, but, compared to an agency that Congress has entrusted to administer a statute that may deal with technical subjects such as wildlife regulation or medical drugs and devices, it is reasonable to believe that Congress would prefer the agency to have interpretive authority.94 Implications for the Federal Judiciary As with the Chevron framework, the Loper decision is legally binding only on the judiciary: It sets out the proper methodology that courts must use for determining the meaning of a federal statute where an agency has also provided its own interpretation.95 The Loper decision, however, will likely affect the Supreme Court differently than it will the lower courts. The Supreme Court has largely avoided applying the Chevron framework since 2016, while the lower courts, bound by precedent to apply Chevron, were applying the framework regularly until the Court handed down its Loper decision.96 The lower courts will also be called to address some of the questions left open by the Loper decision. Over the coming years, courts may address how they are to engage in statutory interpretation,97 whether and how the Skidmore standard applies to agency interpretations of statutes,98 how to evaluate delegations of discretion from Congress to agencies,99 and Loper’s interaction with other doctrines such as the major questions doctrine and Auer deference, which applies to an agency’s interpretation of its own ambiguous regulations.100 90 Id. at 2297. 91 Id. 92 Id. at 2295. 93 Id. at 2298. 94 Id. 95 Id. at 2273 (majority opinion) (holding that courts are no longer permitted to apply the Chevron framework). 96 Id. at 2271–72 (citing William Eskridge & Lauren Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations From Chevron to Hamdan, 96 GEO. L. J. 1083, 1125 (2008)) (“we have avoided deferring under Chevron since 2016. That trend is nothing new; for decades, we have often declined to invoke Chevron even in those cases where it might appear to be applicable.”); Isaiah McKinney, The Chevron Ball Ended at Midnight, but the Circuits are Still Two-Stepping by Themselves, NOTICE & COMMENT, YALE J. ON REGUL. BLOG (Dec. 18, 2022), https://www.yalejreg.com/nc/chevron-ended/ (studying the application of the Chevron framework in the lower courts in 2020 and 2021). 97 See infra “Methods of Statutory Interpretation.” 98 See infra “Skidmore Weight.” 99 See infra “Delegations from Congress.” 100 See infra “Relationship with other Doctrines of Judicial Review.” Congressional Research Service 9 Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law The Supreme Court Between 2016 and its decision in Loper in 2024, the Court did not defer to agency interpretations under Chevron and often did not even mention the framework in cases where it would have once governed.101 Even prior to the past decade, scholars had identified a trend that the Court was relying less on Chevron than might be expected.102 From roughly the mid-1980s to the mid2000s, studies found that the Supreme Court applied Chevron to about one-quarter103 to onethird104 of cases where an agency interpretation was at issue. Even where the Court applied Chevron, various studies found that the application of Chevron had little effect on the outcome of the case. A 2008 study, for instance, found that agencies prevailed about 76% of the time when the Court applied Chevron—similar to agencies’ litigation successes in cases where the Court did not apply Chevron.105 Another study that analyzed cases decided between 1984 and 1990 (i.e., just after the Court decided the Chevron case) found similarly that the Court applied Chevron in only about one-third of cases to which it would have been applicable.106 The same study found that despite Chevron’s “agency friendly” reputation, agencies had a lower litigation success rate when the Court applied Chevron than when it did not.107 These studies indicate that, at least at the Supreme Court, Chevron may not have had a significant impact on the outcome of cases. Put another way by one pair of scholars, “The Court’s questionable loyalty to Chevron suggests that the doctrine is not meant to discipline Supreme Court decisionmaking. Instead, the doctrine may better serve to control lower courts and provide nationwide uniformity.”108 This difference between the use of Chevron at the Supreme Court and in the lower courts has led some to claim that there was a “Chevron Supreme and a Chevron Regular.”109 Partially in light of this history at the Court, the majority in Loper dubbed Chevron a “decaying husk” with little practical reason for keeping it.110 Overruling Chevron may ultimately have little effect on the way the Court approaches questions of statutory interpretation that involve agencies. Rather than applying or even citing Chevron, the Court has often engaged in what is known as de novo review of statutory text. De novo literally means “anew” in Latin and, as applied to the judicial context, means that a reviewing court analyzes the meaning of statutory text without deference to an agency.111 This type of review reflects the approach the Court in Loper directs courts to apply as the proper approach to statutory 101 Loper, 144 S. Ct. at 2271–72. 102 See William Eskridge & Lauren Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations From Chevron to Hamdan, 96 GEO. L. J. 1083, 1125 (2008); Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L. J. 969, 982 (1992). 103 William Eskridge & Lauren Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations From Chevron to Hamdan, 96 GEO. L. J. 1083, 1125 (2008). 104 Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L. J. 969, 982 (1992). 105 William Eskridge & Lauren Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations From Chevron to Hamdan, 96 GEO. L. J. 1083, 1099 (2008). 106 Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L. J. 969, 981–84 (1992). 107 Id. at 984. 108 Kent Barnett & Christopher J. Walker, Chevron in the Circuit Courts, 116 MICH. L. REV. 1, 18 (2017). 109 Id. at 6. 110 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2272 (2024). 111 Isaiah McKinney, The Chevron Ball Ended at Midnight, but the Circuits are Still Two-Stepping by Themselves, NOTICE & COMMENT, YALE J. ON REGUL. BLOG (Dec. 18, 2022), https://www.yalejreg.com/nc/chevron-ended; De novo, BLACK’S LAW DICTIONARY (12th ed. 2024) (“When a court engages in de novo review of a legal issue, it makes an independent determination without deference to any earlier analysis about the matter.”). Congressional Research Service 10 Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law interpretation.112 Overruling Chevron, accordingly, may have little impact on the outcome of cases at the Court, as the Court began engaging in de novo review well before it overruled Chevron.113 The Lower Courts Overruling Chevron may have a larger impact on the lower courts. Until the day Loper was decided, the lower courts were applying the Chevron framework regularly.114 According to legal scholars, Chevron was cited by the federal courts roughly 18,000 times in the four decades of its existence, making it the most-cited administrative law decision of all time and one of the most cited cases in history.115 A 2017 study that evaluated more than 1,300 courts of appeals cases from 2003 to 2013—the largest study of courts of appeals decisions that refer to Chevron—found that the courts of appeals on average applied Chevron in close to three-quarters of cases addressing agency interpretations.116 A subsequent study that surveyed federal appellate cases from 2020 to 2021 revealed that courts of appeals continued to apply Chevron at similar rates as those founds in the 2017 study.117 In the more recent study, federal courts of appeals applied Chevron in close to 85% of cases where agency interpretation was at issue.118 Thus, unlike the Supreme Court, the lower courts continued to apply Chevron in nearly all of the cases in which it would have applied prior to Loper.119 Loper instructs courts to apply their independent legal judgment in determining the best interpretation of statutes in light of any respect or weight given to agency interpretation under the Skidmore standard.120 In other words, Loper instructs courts to engage in de novo review of questions of statutory interpretation involving agencies potentially tempered by the Skidmore standard.121 Lower courts are familiar with the de novo standard. It is the standard that has traditionally been applied to questions of law where no agency had rendered an interpretation.122 After Loper, that same standard will apply in statutory interpretation cases where Chevron would 112 Loper, 144 S. Ct. at 2266. 113 Kristen E. Hickman & Aaron L. Nielson. Narrowing Chevron’s Domain, 70 DUKE L.J. 931, 934 (2021) (noting “At a minimum, the Justices seem more willing to find clarity using traditional tools of statutory interpretation, thereby avoiding Chevron deference altogether.”); see, e.g., Becerra v. Empire Health Foundation, 597 U.S. 424, 434 (2022) (resolving the case without mentioning Chevron); Am. Hosp. Ass’n v. Becerra, 596 U.S. 724, 734 (2022) (same); Epic Sys. Corp. v. Lewis, 584 U.S. 497, 520–21 (2018) (holding that where a statute is clear after application of tools of statutory construction Chevron does not apply). 114 See, e.g., Soumah v. Collett, No. TDC-23-2473, 2024 WL 3201096, at *7 (D. Md. Jun. 26, 2024); Associated Gen. Contractors of Am. v. DOL, No. 5:23-CV-0272-C, 2024 WL 3635540, at *11 (N.D. Tex. Jun. 24, 2024). 115 Ronald A. Cass, Chevron—Complicated, Start to Finish, 23 FEDERALIST SOC’Y REV. 265, 265 (2022); Christopher J. Walker, Most Cited Supreme Court Administrative Law Decisions, NOTICE & COMMENT, YALE J. ON REGUL. BLOG (Oct. 9, 2014), https://www.yalejreg.com/nc/most-cited-supreme-court-administrative-law-decisions-by-chris-walker/. 116 Barnett & Walker, supra note 108, at 5. 117 McKinney, supra note 111. 118 Id. 119 Id.; Barnett & Walker, supra note 108, at 29. 120 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2265 (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). 121 Id. 122 See Pierce v. Underwood, 487 U.S. 552, 558 (1988) (noting that questions of law are traditionally reviewable de novo). Congressional Research Service 11 Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law have once governed.123 The shift from Chevron to a de novo standard may affect the outcome of those cases. According to the 2017 study, in general, agencies were significantly more likely to prevail in the lower courts when a court applied the Chevron framework (77.4%)—even if the court decided that the statute was unambiguous and did not defer to the agency’s interpretation—than when a court applied Skidmore (56.0%) or no deference regime whatsoever (38.5%).124 Given these data, it is possible that overruling Chevron will, in the aggregate, diminish the chances that agencies will prevail in federal court in cases where questions of statutory interpretation arise.125 Several factors may moderate that trend. According to the 2017 study authors, “courts could be strategically choosing deference regimes that more easily allow them to reach an outcome that matches their policy preferences.”126 In other words, some courts may have applied the Chevron framework in cases where the agencies were likely to prevail anyway and did not apply the framework where they believed that the agencies were not likely to win. Agencies may also change their behavior to accommodate the courts’ new standard of review.127 A 2014 study indicated that agency rule drafters may adopt less “aggressive” interpretations of statutes when they did not expect Chevron to apply.128 The Loper decision itself also recognizes that in certain circumstances, agencies’ interpretations should be given “great weight” or “respect” pursuant to Skidmore.129 The Court also recognized that in some cases, the best reading of a statute is that Congress delegated discretion to the agency—not the courts.130 How the lower courts implement these principles from the Loper decision is yet to be seen. Nonetheless, they provide courts with the option to adopt an agency’s interpretation under appropriate circumstances or determine that a statute has delegated the authority to resolve the statutory interpretation question to the agency. The Court’s citation to other pre-APA cases (such as Hearst Publications) that, in the Court’s view, formed the traditional understanding of judicial review codified in Section 706 may also signal approval of the lower courts engaging in deferential review where an agency’s 123 Loper, 144 S. Ct. at 2266. 124 Barnett & Walker, supra note 108, at 30. These aggregate averages disguise significant variation in outcomes across different federal circuit courts of appeals, different agencies, and different subject matters. For example, the D.C. Circuit led the way in applying Chevron, relying on it in approximately 89% of cases that concerned agency interpretations of a statute, while the Sixth Circuit applied Chevron in 61% of cases involving agency interpretation. Id. at 44. Courts of appeals applied Chevron at high rates (75%-100%) to cases involving telecommunications, Indian affairs, and pensions, and courts deferred to agencies under Chevron at similar rates (83%-92%) in those same subject matter areas. Id. at 50, 54. Conversely, courts applied Chevron less frequently (52%-67%) in cases involving housing, tax law, and employment. Id. at 50. Furthermore, even when the courts applied Chevron in this latter group of cases, win rates for agencies were comparatively low (69%-81%). Id. at 54. Somewhat surprisingly, some agencies, such as the Federal Trade Commission, had a higher litigation success rate when courts did not apply Chevron. Id. at 54. Overruling Chevron will likely have differing effects within different circuits and across different agencies. 125 See generally Robert Lafolla, GOP-Picked Judges Take Hard Line on Regulations Post-Chevron, BLOOMBERG LAW (Sep. 4, 2024), https://news.bloomberglaw.com/daily-labor-report/gop-picked-judges-take-hard-line-on-rules-afterchevrons-demise (finding that out of 26 cases decided after Loper agencies won only 4). 126 Barnett & Walker, supra note 108, at 32. 127 For a more detailed discussion, see infra “Implications for Executive Branch Agencies.” 128 Christopher J. Walker, Chevron Inside the Regulatory State: An Empirical Assessment, 83 FORDHAM L. REV. 703, 724 (2014). 129 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2265 (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). 130 Id. at 2263. Congressional Research Service 12 Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law interpretation is particularly fact-bound.131 Skidmore, statutory delegations, and mixed questions of law and fact are discussed in more detail below.132 Some scholars have contended that Chevron may have saved lower courts time by permitting them to engage in meaningful review without having to start from scratch interpreting complex statutory regimes.133 In the absence of the Chevron framework, it is possible that lower courts might turn to other doctrines that serve a similar function as Chevron.134 Two of those doctrines— Skidmore and congressional delegations—are addressed in more detail below.135 The De Novo Standard of Review, Methods of Statutory Interpretation, and Statutory Ambiguity Scholars have described judicial standards of review as a continuum with independent judgment or de novo review on one end and Chevron deference at the other.136 The Loper decision fits this model, holding that a court applying the de novo review standard is required to exercise its independent judgment to determine the best interpretation of a federal statute.137 Under the de novo standard of review, an agency receives no deference whatsoever.138 The de novo standard of review typically refers to the methods courts apply to independently determine the meanings of statutes. The Supreme Court in Loper (as well as Chevron) called these methods the “traditional tools of statutory construction.”139 The Court’s reference to “traditional tools,” however, masks significant debate over which methods of statutory interpretation are included in a court’s traditional toolkit.140 While the Court used this same phrase in Chevron, the importance of particular interpretive methods has changed since Chevron 131 Id. at 2259, 2263. 132 See infra “Policy Discretion, Mixed Questions of Law and Fact, and Arbitrary and Capricious Review;” “Skidmore Weight;” “Delegations from Congress.” 133 See Barnett & Walker, supra note 108, at 71; Thomas W. Merrill, Response: Chevron’s Ghost Rides Again, 103 B.U. L. REV. 1717, 1738 (2023); Gary Lawson, The Ghosts of Chevron Present and Future, 103 B.U. L. REV. 1647, 1709 (2023). 134 See Lisa Schultz Bressman, Lower Courts After Loper Bright, 31 GEO. MASON L. REV. 499, 504 (2024) (arguing “deference (of the controlling variety) is unlikely to disappear after Loper Bright”). 135 See infra “Skidmore Weight;” “Delegations from Congress.” 136 See, e.g., Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452, 453–54 & n.10 (1989); Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969, 971 & n.6 (1992). 137 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2266 (2024). 138 See, e.g., Salve Regina College v. Russell, 499 U.S. 225, 238 (1991); Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638, 650 (1990) (holding that the Court would not defer to an agency’s interpretation of a judicial review provision); Denis v. Att’y Gen. of United States., 633 F.3d 201, 207–08 (3d Cir. 2011) (contrasting Chevron deference with de novo review). 139 Loper, 144 S. Ct. at 2266; see also Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 843 n.9 (1984); Am. Hosp. Assoc. v. Becerra, 596 U.S. 724, 739 (2022). 140 See, e.g., THE CHEVRON DOCTRINE, supra note 41, at 110 (explaining that use of legislative history “was the most obvious point of disagreement” over what tools are included in the traditional toolkit); Bostock v. Clayton Cty, 590 U.S. 644, 654–63 (2020) (explaining that the Court “normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment”); id. at 685 (Alito, J., dissenting) (calling the majority’s statutory analysis “a pirate ship ... sail[ing] under a textualist flag” but not adhering to textualist principles). Compare West Virginia v. EPA, 597 U.S. 697, 736 (2022) (Gorsuch, J., concurring) (endorsing the use of some clear statement rules such as the major questions doctrine as tools of statutory interpretation) with Biden v. Nebraska, 600 U.S. 477, 507 (2023) (Barrett, J. concurring) (noting that she “takes seriously” the claim that the major questions doctrine—described by Justice Gorsuch as a clear statement rule—is “inconsistent with textualism”). Congressional Research Service 13 Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law was decided.141 Most notably, when Chevron was decided, the statutory interpretation method known as textualism—which primarily focuses on the text of a law rather than legislative purpose or prevailing societal values—was not as widely adopted by the federal courts as it is currently.142 It is unlikely that courts will return to pre-Chevron methods of statutory interpretation regardless of the Court’s consistent reference to “traditional tools” of statutory interpretation. Methods of Statutory Interpretation The Chevron Court referred to the “traditional tools” of statutory interpretation in its discussion of how a court should engage in a Chevron step one analysis (i.e., to determine whether a statute is clear). As a result, a court’s step one analysis in many ways mirrored how courts approached statutory interpretation as a general matter outside of the Chevron framework. Sweeping away the Chevron framework did not inaugurate a new approach to statutory interpretation: The methods the courts had been using at step one of Chevron and in cases where Chevron did not apply at all will continue to apply to cases in which agency interpretations of law are at issue. How courts approach statutory interpretation may accordingly shed light on how courts will approach legal challenges to agency interpretations of statutes after Loper. Despite some convergence toward a focus on the text of a statute over the past four decades,143 there remains significant current debate among judges and scholars over the proper methods of statutory interpretation.144 There are different theories of statutory interpretation, and each interpretive school has a distinct view of which tools courts should appropriately deploy when they seek to discern statutory meaning.145 Some studies suggest that many judges do not subscribe to any particular method of statutory interpretation, instead using different methods in different 141 See William N. Eskridge, et al., Textualism’s Defining Moment, 123 COLUM. L. REV. 1611, 1612–26 (2023) (discussing the modern textualist revolution that began in earnest with Justice Scalia); John F. Manning, SecondGeneration Textualism, 98 CAL. L. REV. 1287, 1287–98 (discussing the rise of textualism in the 1980s). Compare J.W. Bateson Co. v. United States ex rel. Bd. of Trs. of the Nat’l Automatic Sprinkler Indus. Pension Fund, 434 U.S. 586, 591 (1978) (concluding that “the authoritative Committee Reports” “leave[] no room for doubt about Congress’ intent”) with Epic Sys. Corp. v. Lewis, 584 U.S. 497, 523 (2018) (holding “legislative history is not the law. ‘It is the business of Congress to sum up its own debates in its legislation,’ and once it enacts a statute ‘we do not inquire what the legislature meant; we ask only what the statute means.’” (quoting Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 396 (1951) (Jackson, J., concurring)). In fact, the Court in Chevron engaged in an extensive review of the legislative history of the Clean Air Act—the statute at issue in Chevron. Chevron, 467 U.S. at 851–53. 142 See generally Jonathan T. Molot, The Rise and Fall of Textualism, 106 Colum. L. Rev. 1, 24 (2006) (discussing the origins of modern textualism in the 1980s and 1990s); William N. Eskridge, et al., Textualism’s Defining Moment 123 Colum. L. Rev. 1611, 1611–16 (2023) (identifying earlier statutory interpretation methods and dubbing modern textualism “clearly ascendant and will remain so for the foreseeable future”). 143 Jeffrey A. Pojanowski, Statutes in Common Law Courts, 91 Tex. L. Rev. 479, 480 (2013) (“The dust from the Thirty Years’ statutory interpretation wars may have settled and, while textualism has not won an unconditional surrender in the Supreme Court, it appears to have gained substantial territory before its truce with purposivism.”); John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 75 (2006) (“I argue here that textualism and purposivism do in fact share more conceptual common ground than textualists (myself included) have sometimes emphasized. Nonetheless, salient differences remain.... ”). 144 See supra note 140 and accompanying text. 145 See CRS Report R45153, Statutory Interpretation: Theories, Tools, and Trends, by Valerie C. Brannon (2023) (discussing various approaches to statutory interpretation); see also Lisa Shultz Bressman, Chevron’s Mistake, 58 DUKE L.J. 549, 551 (2009) (“In applying Chevron, courts rely heavily on the dominant theories of statutory interpretation: intentionalism, purposivism, or textualism.”). See generally John F. Manning, Textualism and Legislative Intent, 91 VA. L. REV. 419, 424 (2005) (“[W]hereas intentionalists believe that legislatures have coherent and identifiable but unexpressed policy intentions, textualists believe that the only meaningful collective legislative intentions are those reflected in the public meaning of the final statutory text.”). Congressional Research Service 14 Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law contexts.146 Nonetheless, many (if not most) courts start their statutory interpretation analyses with the statutory text.147 Moreover, there are several variants of textualism applied throughout the federal judiciary.148 Many, however, share some common assumptions, such as that the words of a statute read in context are the best evidence of the meaning of the statute and that a court can identify the best meaning by resorting to rules of grammar and syntax, context, and canons of construction.149 A focus on text has consequences for which methods of statutory interpretation are considered valid. For example, judges who consider themselves textualists may discount the value of legislative history as poor evidence of the meaning of a statute because legislative history was not enacted through the legislative process as the text of the statute was.150 They may turn to legislative history only when a court cannot resolve the meaning of a statute using other approaches or as a second order justification for an interpretation derived using more textualist methods.151 Textualists may also turn to legislative history not as objective evidence of congressional intent but as evidence of ordinary meaning (i.e., how Congress used a statutory term).152 Textualists are sometimes skeptical of methods of interpretation that impose judges’ 146 See, e.g., Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals, 131 HARV. L. REV. 1298 (2018); James J. Brudney & Lawrence Baum, Protean Statutory Interpretation in the Courts of Appeals, 58 WM. & MARY L. REV. 681 (2017); Daniel M. Schneider, Empirical Research on Judicial Reasoning: Statutory Interpretation in Federal Tax Cases, 31 N.M. L. REV. 325, 338– 51 (2001); Aaron-Andrew P. Bruhl, Statutory Interpretation and the Rest of the Iceberg: Divergences between the Lower Federal Courts and the Supreme Court, 68 DUKE L. J. 1, 56 (2018). 147 See, e.g., Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 583 U.S. 366, 378 (2018) (“Our analysis beings with the text ... and we look to both ‘the language itself and the specific context in which that language is used.’” (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)); United States v. Magassouba, 544 F.3d 387, 404 (2d Cir. 2008) (laying out the traditional hierarchy of statutory interpretation tools, starting with plain text and context, and moving to canons of construction if the plain text is found to be ambiguous, and finally resorting to legislative history only if after the application of canons of construction the statute is still unclear); CGM, LLC v. BellSouth Telecomms, Inc., 664 F.3d 46, 53–54 (4th Cir. 2011) (quoting Graden v. Conexant Systems Inc., 496 F.3d 291, 295 (4th Cir. 2007)) (“We employ the usual tools of statutory interpretation. We look first at the text of the statute and then, if ambiguous, to other indicia of congressional intent such as the legislative history.”). 148 See William N. Eskridge, et al., Textualism’s Defining Moment, 123 COLUM. L. REV. 1611, 1616–23 (2023) (summarizing debates among modern textualists). 149 See generally Caleb Nelson, What is Textualism?, 91 VA. L. REV. 347, 348 (2005); John F. Manning, What Divides Textualists from Purposivists?, 106 COLUM. L. REV. 71, 91–92 (2006); Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 HARV. L. REV. 2119, 2135 (2016). Tools of statutory construction that focus on determining legislative intent have become somewhat more controversial since Chevron was decided but are sometimes still deployed. Compare, e.g., Babbitt v. Sweet Home Chapter of Cmtys. for a Great Oregon, 515 U.S. 687, 698 (1995) (“[T]he broad purpose of the ESA supports the Secretary’s decision to extend protection against activities that cause the precise harms Congress enacted the statute to avoid.”); with id. at 726 (Scalia, J., dissenting) (“Deduction from the ‘broad purpose’ of a statute begs the question if it is used to decide by what means (and hence to what length) Congress pursued that purpose; to get the right answer to that question there is no substitute for the hard job (or, in this case, the quite simple one) of reading the whole text.”). 150 See Nelson, supra note 149, at 393–94. 151 See supra note 147; see also Fischer v. United States, 144 S. Ct. 2176, 2186 (2024) (turning to “the history” of a criminal law provision to support the Court’s textual analysis of a catchall phrase); Snyder v. United States 144 S. Ct. 1947, 1955 (2024) (turning to enactment history to support the Court’s evaluation of the text of a bribery statute); Astrue, 566 U.S. at 553 (2012) (considering prior version of statute); INS v. Cardoza-Fonseca, 480 U.S. 421, 436–37, 441–42 (1987) (reviewing congressional record and rejection of Senate version of bill); THE CHEVRON DOCTRINE, supra note 41, at 108; see also Cardoza-Fonseca, 480 U.S. at 453 (Scalia, J., concurring) (disapproving of majority’s use of legislative history because courts “are not free to replace [clear statutory language] with an unenacted legislative intent”). The Chevron decision itself, however, relied heavily on legislative history in coming to its conclusion about the meaning of the Clean Air Act. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 851–53 (1984). 152 Bostock v. Clayton Cnty., 590 U.S. 644, 674–75 (2020) (“To ferret out such shifts in linguistic usage or subtle (continued...) Congressional Research Service 15 Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law substantive values on the meaning of the text, such as clear statement rules or other substantive canons of construction.153 As noted above, however, many judges take a more eclectic approach to statutory interpretation and may deploy these tools of interpretation at different times or in different ways. In addition, some of the Supreme Court’s more recent decisions have appeared to use older tools of statutory construction that were commonly used prior to Chevron. It was common prior to Chevron for courts to look to long-standing agency practice as evidence of a statute’s meaning.154 After Chevron was decided, there was some dispute over whether courts should continue to do so as part of the Chevron framework.155 While the Court never entirely stopped referring to past agency practice,156 more recently, the Court has appeared to rely on it more often.157 The Court in Loper appeared to explicitly endorse past agency practice as an appropriate tool of statutory interpretation.158 In Loper, for instance, the Court interpreted Section 706 of the APA by relying in part on the Department of Justice’s long-standing interpretation of Section 706 set forth in a 1947 manual.159 The Loper Court explicitly justified its use of past agency practice by citing Skidmore,160 which identified a number of indicia to which a court may look to determine the persuasiveness of an agency’s interpretation. Some of those indicia include the consistency of an agency’s interpretation and whether the interpretation was issued contemporaneously with the distinctions between literal and ordinary meaning, this Court has sometimes consulted the understandings of the law’s drafters as some (not always conclusive) evidence.”); Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2262 (2024) (“The text of the APA means what it says. And a look at its history if anything only underscores that plain meaning.”). 153 See CRS Legal Sidebar LSB11084, Clear Statement Rules, Textualism, and the Administrative State, by Benjamin M. Barczewski and Valerie C. Brannon (2023). A substantive canon of construction is a judicial presumption for or against certain outcomes in a case. Id. A clear statement rule is a type of substantive canon that represents a judicial presumption that courts should not interpret a statute a certain way unless Congress made a “clear statement” requiring that outcome. Id. 154 THE CHEVRON DOCTRINE, supra note 41, at 34–37; Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 YALE L.J. 908, 938 (2017). 155 THE CHEVRON DOCTRINE, supra note 41, at 34–45, 134–37. Explicit reference to longstanding agency interpretations was somewhat rare post-Chevron. See id. at 137–38; Cardoza-Fonseca, 480 U.S. at 434–35; Barnhart v. Walton, 535 U.S. 212, 219–20 (2002); NLRB v. United Food & Com. Workers Union, 484 U.S. 112, 124 n.20 (1987); Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969, 984–85, 1018–22 (1992) (finding in a study of the Court’s opinions citing Chevron between 1984 and 2006 that the Court referred to the long-standing nature of an interpretation less often after Chevron). Justice Scalia took issue with the Court’s reliance on past agency practice, arguing that after Chevron inquiries into past agency practice is “a relic of pre-Chevron days.” Barnhart, 535 U.S. at 226 (Scalia, J., concurring in part and concurring in the judgment). 156 See, e.g., Barnhart, 535 U.S. 212, 219–20 (2002) (noting the agency’s interpretation was “longstanding”); Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs 531 U.S. 159, 168 (2001) (looking to agency’s original interpretation of a federal statute); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 145–46 (2000) (looking to prior agency interpretations of the governing statute, as announced in congressional hearings). 157 See, e.g., West Virginia v. EPA, 597 U.S. 697, 726–27 (2022) (turning to EPA’s long-standing interpretation of a provision of the Clean Air Act as evidence of statutory meaning); Biden v. Nebraska, 600 U.S. 477, 497 (2023) (surveying the Department of Education’s interpretation of a statute over time as evidence of the statute’s meaning); Am. Hosp. Assoc. v. Becerra, 596 U.S. 724, 729 (2022) (noting that the Department of Health and Human Services consistently relied an interpretation of the Medicare Act for decades); Nat’l Fed. of Indep. Bus. v. Occupational Safety and Health Admin., 595 U.S. 109, 119–20 (2022) (noting the novelty of the agency’s interpretation of a statute in finding that it lacked the authority it claimed); THE CHEVRON DOCTRINE, supra note 41, at 34–45 (discussing the prevalence of the Court resorting to past agency practice in the decades prior to Chevron). 158 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2262 (2024) (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); United States v. Am. Trucking Ass’ns, 310 U.S. 534, 549 (1940)) (“[I]nterpretations issued contemporaneously with the statute at issue, and which have remained consistent over time, may be especially useful in determining the statute’s meaning.”). 159 Id. (citing Dep’t of Justice, Attorney General’s Manual on the Administrative Procedure Act 108 (1947)). 160 Id. Congressional Research Service 16 Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law statute.161 Skidmore predated the APA by two years and, in the Court’s view, forms part of the general background norms of judicial review that were codified in Section 706 of the APA.162 Statutory Ambiguity Related to the broader debates in the legal community over the proper methods of statutory interpretation, the majority and the dissent in Loper split over whether statutory ambiguity could still exist even after the application of the traditional tools of statutory interpretation. The existence of statutory ambiguity was a central assumption of the Chevron framework.163 Chevron’s first step required a court to apply the traditional tools of statutory construction to determine whether the statute at issue was clear or ambiguous.164 The implicit assumption in the Chevron framework was that there would be some statutes that, even after the application of all the generally accepted methods of statutory interpretation, may not yield clear answers. In these situations, the Loper dissent argued that “Congress’s instructions have run out.”165 The choice between different reasonable interpretations of an ambiguous statute was, according to the dissent’s view, more akin to policy than to law.166 Where statutory ambiguity existed, the Court in Chevron determined that the judiciary should stay out of making policy.167 Accordingly, the APA’s charge that courts “decide all relevant questions of law” did not conflict with Chevron on this account, because instances where courts deferred were not questions of law.168 The Loper Court rejected the claim that statutory ambiguity implies an absence of law.169 For the majority, law never “run[s] out.”170 Questions of the meaning of a statute are, for the Loper Court, always questions of law susceptible to resolution by the application of the tools of statutory interpretation.171 “[S]tatutes, no matter how impenetrable, do—in fact, must—have a single, best meaning” that is “fixed at the time of enactment.”172 In Loper the Court left unsaid which tools 161 Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (“We consider that the rulings, interpretations and opinions of the Administrator under [the Fair Labor Standards] Act ... constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”). 162 Loper, 144 S. Ct. at 2262, 2265. 163 See Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). During the four decades between Chevron and Loper, judges and scholars often debated how clear a statute needed to be in order for a court to resolve the case at step one of Chevron or move to step two. See Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L. J. 511, 520 (“Here, of course, is the chink in Chevron’s armor—the ambiguity that prevents it from being an absolutely clear guide to future judicial decisions (though still a better one than what it supplanted). How clear is clear?”); Jeffrey A. Pojanowski, Without Deference, 81 MO. L. REV. 1075, 1082 (2016) (noting “lurking questions about how hard courts ought to work before deciding whether a statute is clear”); Kavanaugh, supra note 149, at 2138; Ryan D. Doerfler, How Clear is Clear?, 109 VA. L. REV. 651 (2023). The question in Loper, however, shifted from how to identify statutory ambiguity to whether statutory ambiguity even exists after the application of the tools of statutory interpretation. Loper, 144 S. Ct. at 2266. 164 Chevron, 467 U.S. at 842–43. 165 Loper, 144 S. Ct. at 2294 (Kagan, J., dissenting). 166 Id. 167 Chevron, 467 U.S. at 865–66; see also Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2373 (2001) (arguing the “Chevron deference rule had its deepest roots in a conception of agencies as instruments of the President” and is best justified as ensuring that policymaking functions track political accountability). 168 Loper, 144 S. Ct. at 2302 (Kagan, J., dissenting). 169 Id. at 2266–68. 170 Id. at 2266. 171 Id. 172 Id. (emphasis added). Congressional Research Service 17 Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law produce the most persuasive evidence of statutory meaning—for example, the text of the statute, statutory purposes, or legislative history.173 It is likely, given the views of a majority of Justices expressed in other opinions, that they would consider themselves textualists.174 Although textualists typically focus on what is within the four corners of the statute, modern textualists also take into account certain types of “context.”175 Context can be as narrow as the context in which a contested word or phrase is used in the statute itself176 or as broad as general constitutional norms.177 Falling somewhere between those two poles, statutory structure,178 enactment history179 and prior judicial precedent180 can also supply “context” for the meaning of a statute. Judges and scholars, however, debate the proper use of context, including how widely courts should look for context and under what circumstances some forms of context should be used.181 Regardless of which evidence is used to determine the meaning of a statute, the Court’s statement that a statute’s meaning (however determined) is fixed at a particular time—the time of enactment—implies that post-enactment policy considerations by, for example, agency personnel implementing the statute (as happened under Chevron) and possibly by courts interpreting the statute may be inappropriate as a means to provide meaning to a statute. If this reading of the Loper decision is correct, it may call into question certain tools of statutory construction (e.g., substantive canons of construction) that themselves are triggered by ambiguity and impose postenactment and extratextual value choices on a statute’s text.182 In a footnote in her dissent, Justice Kagan took up this issue, arguing that the majority’s view that Chevron was based on an erroneous presumption when a court identified an ambiguity may call into question other presumptions that are likewise triggered by “a congressional lack of 173 See id. 174 Bostock v. Clayton County, 590 U.S. 644, 654 (2020) (“This court normally interprets a statute in accord with the ordinary public meaning of its terms.... ”); Food Mktg. Inst. v. Argus Leader Media, 588 U.S. 427, 436 (2019) (“In statutory interpretation disputes, a court’s proper starting point lies in a careful examination of the ordinary meaning and structure of the law itself.”); Kevin Tobia, et al. Statutory Interpretation from the Outside, 122 COLUM. L. REV. 213, 216 (2022) (noting that a majority of Supreme Court justices adhere to textualist principles). 175 See, e.g., Biden v. Nebraska, 600 U.S. 477, 511–12 (2023) (Barrett, J., concurring) (discussing the importance of “context” in textualist statutory interpretation methodology). 176 See Brown v. United States, 602 U.S. 101, 112 (2024) (relying in part on the provisions surrounding the contested term as evidence of its meaning); John Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2457 (2003). 177 Snyder v. United States, 603 U.S. 1, 13 (2024) (holding that notions of federalism point in favor of a particular interpretation of a statute); see also Biden, 600 U.S. at 515 (Barrett, J., concurring) (arguing that the major questions doctrine “makes eminent sense in light of our constitutional structure, which is itself part of the legal context”). 178 See, e.g., Becerra v. Empire Health Found., 597 U.S. 424, 434 (holding that the structure of the Medicare Act supported the agency’s interpretation); Snyder, 603 U.S. at 12 (relying in part on statutory structure as evidence of statutory meaning). 179 See, e.g., Becerra v. San Carlos Apache Tribe, 602 U.S. 222, 238 (2024) (recounting the enactment history of the contested provision of the statute and relying on it in part as evidence of statutory meaning); Snyder, 603 U.S. at 12 (“[T]he statutory history ... reinforces [our] textual analysis.”). 180 See, e.g., Brown, 602 U.S. at 111–12 (relying in part on prior judicial precedent to determine the meaning of a statute). 181 See, e.g., William N. Eskridge, et al., Textualism’s Defining Moment, 123 COLUM. L. REV. 1611, 1660 (2023) (surveying disputes among textualists about the proper use of “context”). 182 See, e.g., Iancu v. Brunetti, 588 U.S. 388, 397 (2019) (holding that the constitutional avoidance canon applies only where a statute is found to be ambiguous); Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 590 (2008) (holding that the Court need not apply the sovereign immunity canon because the statute was not ambiguous); South Carolina v. Catawba Indian Tribe, Inc. 476 U.S. 498, 506 (1986) (holding that an ambiguity in a statute must exist before the court resorts to the Indian canon); Hassett v. Welch, 303 U.S. 303, 314 (1938) (“Resort is had to canons of constructions as an aid in ascertaining the intent of the Legislature.... The matter is, we think, involved in sufficient ambiguity to warrant our seeking such aid.”). Congressional Research Service 18 Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law direction.”183 In Justice Kagan’s view, like Chevron, these presumptions both rely on identifying a statutory gap or ambiguity and impose post-enactment values on the meaning of a statute.184 The majority’s skepticism of the existence of ambiguity as a trigger for Chevron may prompt courts to revisit some of these other presumptions.185 Whether and to what extent lower courts embrace the Court’s view of statutory ambiguity is yet to be seen. The Court’s skepticism of the existence of ambiguity, if taken at face value by the lower courts, may have implications for how courts approach statutory interpretation in general and which tools of statutory construction are considered applicable in particular. For instance, as described above, substantive canons are triggered only by ambiguity.186 Substantive canons are judicial presumptions that impose certain substantive values on the outcome of a case.187 Unlike semantic canons, substantive canons are not derived from general assumptions about how ordinary speakers use English or how Congress uses statutory terms.188 For instance, the federalism canons serve to preserve the federal-state balance, requiring Congress to make a clear statement before intruding on state authority.189 As a result, substantive canons are viewed by certain judges with some trepidation because they impose judicial values that may not be represented in the text of the statute.190 Moreover, the application of Skidmore and other deference doctrines such as Auer deference, which are discussed in more detail below, may also be affected by the Court’s skepticism of ambiguity.191 Skidmore, like some canons of construction, has often been applied where a court is unable, after using the tools of statutory construction, to resolve a question of statutory 183 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2297 n.1 (2024) (Kagan, J., dissenting) (quoting Boechler v. Commissioner, 596 U.S. 199, 203 (2022)) (citing to the presumption against extraterritoriality, the presumption against retroactivity, the presumption against implied repeal, and the “(so far unnamed) presumption against treating a procedural requirement as ‘jurisdictional’”); see also Abbe R. Gluck, Overruling Chevron Without a Coherent Theory of Statutory Interpretation and the Court-Congress Relationship, 62 HARV. J. ON LEG. 20 (2024) (arguing that Loper calls into question many tools of statutory construction that rely on ambiguity as a trigger and a presumption about congressional intent). 184 Loper, 144 S. Ct. at 2297. 185 One potential way courts could respond is along the lines suggested by then-Judge Kavanaugh. Kavanaugh, supra note 4, at 2144. Prior to joining the Court, then-Judge Kavanaugh wrote that, rather than determining whether a statute is clear or ambiguous, a court should identify the “best reading” of a statute. Id. Once the best reading has been identified, the court “can apply—openly and honestly—any substantive canons (such as plain statement rules of the absurdity doctrine) that may justify departure from the text.” Id. 186 See id. 187 See Barczewski & Brannon, supra note 153 (discussing clear statement rules and substantive canons of construction). 188 CRS Report R45153, Statutory Interpretation: Theories, Tools, and Trends, by Valerie C. Brannon (2023). 189 Id. at 57. 190 Biden v. Nebraska, 600 U.S. 477, 507–08 (2023) (Barrett, J. concurring) (discussing reactions to substantive canons); Barczewski & Brannon, supra note 153 (discussing the reaction some textualist judges and scholars have to substantive canons); Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. REV. 109, 110 (explaining that substantive canons “pose[] a significant problem” for textualists); Robert A. Katzmann, JUDGING STATUTES 52 (2014) (“[W]iping out legislative history, in the face of empirical evidence that Congress views it as essential in understanding its meaning, leaves us largely with a canon-based interpretive regime that may not only fail to reflect the reality of the legislative process, but may also undermine the constitutional understanding that Congress’s statutemaking should be respected as a democratic principle.”); Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. CAL. L. REV. 845, 870 (1992) (arguing legislative history is more accessible than are the canons to give notice of statutory meaning). 191 See infra, “Auer (Kisor) Deference.” Congressional Research Service 19 Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law meaning.192 The same goes for Auer deference.193 Like Chevron, Auer deference applies only where a court first identifies an ambiguity.194 Thus, if it is not possible for ambiguity to exist after applying the traditional tools, Skidmore and Auer deference would never come into play. Whether these doctrines and tools of statutory construction will play a significant role or even persist in future cases is unclear. It is possible to read the Loper majority’s view more modestly. The Supreme Court stressed that courts should “use every tool at their disposal to determine the best reading of the statute.”195 Tools such as substantive canons, Auer, and Skidmore can help resolve statutory ambiguities and at least superficially appear to fit within the majority’s view that questions about the meaning of statutes should be resolved through legal means.196 Under this view, the Court was simply reiterating that questions of the meaning of law are legal questions to be resolved by any means peculiar to courts.197 This more modest view stands in some tension with the Court’s description of a statute as having a “single best” meaning “fixed at the time of enactment.”198 Skidmore Weight The Supreme Court cited Skidmore several times in the Loper decision.199 The Court’s frequent invocation of Skidmore appears to endorse courts’ consideration of agency practice as potential evidence of the best meaning of a statute.200 Prior to Loper, Chevron deference applied only to an interpretation that had been issued by an agency that possessed statutorily delegated authority to regulate with the force of law and used that delegated authority to announce its interpretation.201 Interpretations advanced in non-legally binding forms—such as guidance documents, policy statements, or interpretive rules—were not eligible for Chevron deference.202 In the 2001 case United States v. Mead, the Supreme Court held 192 Hickman & Krueger, supra note 62, at 1254–55 (2007) (noting that courts typically find statutes to be ambiguous or less than clear before turning to Skidmore). The Court in Loper cited favorably to Skidmore as a potential tool to resolve statutory ambiguity but did not address under what circumstances a court should resort to Skidmore. Given its statements about ambiguity, it is not clear how much of a rule Skidmore will play in future cases. Some lower court cases decided after Loper appear to embrace the view that Skidmore applies only if the court cannot determine the meaning of statute by other means. See infra, “Post-Loper Applications of Skidmore.” 193 See Kisor v. Wilkie, 588 U.S. 558, 573 (“[T]he possibility of deference can arise only if a regulation is genuinely ambiguous.”). 194 Id. 195 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2266 (2024). 196 Id. at 2266–68. At least one commentator has taken a similar view of the Court’s statements in Loper. See Charles F. Capps, Does the Law Ever Run Out?, 100 NOTRE DAME L. REV. (forthcoming 2025), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4908863. Some scholars have classified deference doctrines as canons of statutory construction rather than binding precedent. Connor N. Raso & William N. Eskridge, Jr., Chevron as a Canon, Not a Precedent: an Empirical Study of What Motivates Justices in Agency Deference Cases, 110 COLUM. L. REV. 1727, 1765 (2010). 197 See Loper, 144 S. Ct. at 2266–68. 198 Id. at 2266. 199 Id. at 2259, 2262, 2265, 2267. 200 See id. at 2267 (holding agency “expertise has always been one of the factors which may give an Executive Branch interpretation particular ‘power to persuade, if lacking power to control.’” (quoting Skidmore v. Swift & Co. 323 U.S. 134, 140 (1944))). 201 United States v. Mead Corp., 533 U.S. 218, 234 (2001). 202 Id. Congressional Research Service 20 Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law that even where an agency interpretation, because of its lack of the force of law, was ineligible for Chevron, it may be eligible to be evaluated pursuant to Skidmore.203 Chevron and subsequent cases refining its application, such as Mead, accordingly created a twotiered standard of review for agency interpretations.204 Agency interpretations that carried the force of law were eligible for evaluation under Chevron, while every other interpretation by an agency was potentially eligible for treatment pursuant to Skidmore.205 By overruling Chevron, Loper collapsed this two-tiered system into a single standard of review, with the option for courts to evaluate an agency’s interpretation pursuant to Skidmore where appropriate.206 As a result, any agency interpretation is now potentially eligible to be evaluated under Skidmore, although, given the Court’s statements regarding ambiguity, it is not clear how much of a role Skidmore will play in the future.207 Skidmore is considered to be less deferential than Chevron is.208 Just how deferential Skidmore is, however, has been the subject of some debate.209 The Court in Mead, for example, described Skidmore as providing “some deference”210 to agency interpretations, though not “the same deference as [interpretations] that derive from the exercise of delegated lawmaking powers.”211 At bottom, unlike Chevron, Skidmore is understood to permit—but not require—a court to adopt an agency’s interpretation.212 Skidmore provided a framework through which a court might give special consideration to an agency’s interpretation.213 It is still not entirely clear whether application of Skidmore post-Loper will resemble the courts’ application of Skidmore during the time of Chevron. Only a relatively small number of cases have addressed Skidmore post-Loper. Moreover, prior to Loper, Skidmore typically applied only to agency interpretations that did not carry the force of law. In practice, this scope meant that most agency interpretations evaluated pursuant to Skidmore were not promulgated through notice and comment rulemaking and as a result may have lacked the thorough explanations that accompany 203 Id. 204 Id.; Thomas W. Merrill & Kristen E. Hickman, Chevron’s Domain, 89 GEORGETOWN L.J. 833, 863 (2001) (discussing the continued existence of Skidmore as a default deference doctrine when Chevron did not apply); Peter L. Strauss, “Deference” is too Confusing—Let’s Call them “Chevron Space” and “Skidmore Weight”, 112 COLUM. L. REV. 1143, 1146 (2012) (identifying the different circumstances in which Chevron and Skidmore applied). 205 See Mead, 533 U.S. at 234; Christensen v. Harris County, 529 U.S. 576, 586–88 (2000). 206 See Loper, 144 S. Ct. at 2267. 207 See id. See also supra, “Statutory Ambiguity.” At least one scholar has argued that Loper, by doing away with Mead’s focus on agency procedures as a threshold to being eligible to be evaluated under the Chevron framework, may open the door to courts paying “due respect” to “a type of specialized lawyerly expertise that comes with extensive executive branch experience, such that agency legal briefs, ... can still warrant special respect in court.” Adam Crews, Navigating the New Loper Bright Regime, 34 WIDENER COMMONWEALTH L. REV. 41, 64–65 (2024). 208 Mead, 533 U.S. at 234–35; Merrill, supra note 204, at 860–63. But see William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L. J. 1083, 1099 (2008) (finding between 1983 and 2005 agencies won 76.2% of cases when the Supreme Court applied Chevron and 73.5% when the Court applied Skidmore). 209 Hickman & Krueger, supra note 62, at 1251 (noting that some have argued that Skidmore requires nothing more than “independent judgment,” while others have argued that Skidmore is “a type of deference that varies in extent from case to case on a sliding scale”). 210 Mead, 533 U.S. at 227. 211 Martin v. Occupational Safety and Health Review Comm’n, 499 U.S. 144, 157 (1991). 212 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2267 (2024) (“Such expertise has always been one of the factors which may give an Executive Branch interpretation particular ‘power to persuade, if lacking power to control.’” (quoting Skidmore v. Swift & Co. 323 U.S. 134, 140 (1944))). 213 Strauss, supra note 204, at 1145 (“‘Skidmore weight’ addresses the possibility that an agency’s view on a given statutory question may in itself warrant respect by judges who themselves have ultimate interpretive authority.”) Congressional Research Service 21 Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law agency actions promulgated through notice and comment. By making all agency interpretations potentially eligible for treatment under Skidmore, an agency’s chance of prevailing in court on its preferred statutory interpretation may increase compared to win rates under Skidmore prior to Loper. This could be true because some number of interpretations promulgated through notice and comment rulemaking will likely include more thorough explanations of agencies’ positions.214 Nonetheless, empirical analyses of Skidmore’s effect on the outcome of cases and how courts applied it prior to Loper may provide clues as to what the application of Skidmore may look like in the years to come. Analyses of Skidmore Pre-Loper The way courts applied Skidmore before Loper may help illuminate how courts might approach Skidmore going forward. As an initial matter, Skidmore has received far less attention from the courts in the past decades than did Chevron and may need additional development by the courts to refine its application. Nonetheless, scholars studying judicial approaches to Skidmore were able to identify certain trends in its application. A 2007 study of cases applying Skidmore prior to the Loper decision identified significant variability in the ways in which courts applied Skidmore.215 The study identified two conceptions of Skidmore.216 In one conception—dubbed the “independent judgment conception”—the Skidmore standard evaluates an interpretation as persuasive on its merits or its rightness.217 This view tends to discount Skidmore’s contextual factors, such as the long-standing nature of the interpretation.218 “In effect, [under this view] Skidmore directs courts to treat the agency’s view just as it would the view of any litigant.”219 The Court’s decision in Christensen v. Harris County exemplifies the independent judgment conception.220 In that case, the Court was called on to evaluate a Department of Labor (DOL) interpretation of the Fair Labor Standards Act.221 Although the Court found the statute silent on the question at hand, it began with an independent evaluation of the statute’s text to find the “better” reading of the statute.222 The Court’s conclusion ran counter to the agency’s 214 See Kristin E. Hickman, Anticipating a New Modern Skidmore Standard, DUKE LAW JOURNAL ONLINE 10–11 (forthcoming 2025) (predicting that agency win rates under Skidmore in challenges to their rulemakings may approach the win rates agencies enjoyed under Chevron). 215 Hickman & Krueger, supra note 62, at 1251–52. Additionally, empirical analyses prior to Loper confirm that Skidmore results in less deference (measured by agency win rates) than Chevron did. In a different study of more than 1,000 published decisions of the federal courts of appeals decided between 2003 and 2013, the authors found that agency interpretations prevailed 77.4% of the time when a court applied Chevron but only 56% of the time when a court applied Skidmore. Barnett & Walker, supra note 108, at 5–6. As with Chevron, agencies prevailed at different rates under Skidmore in different circuits. For example, agencies only won 25% of the time in the Tenth Circuit, 50% of the time in the Sixth and Ninth Circuits, and 100% of the time in D.C. and Eighth Circuits. Id. at 44 n.228. The study authors note that their findings on win rates in agency rule challenges under Skidmore are in line with earlier studies of the application of Skidmore. Id. at 31, n.178. Earlier studies found affirmance rates of 55.1% in 1965, 60.6% in 1975, and 60.4% in 2001 to 2005. Id. (citing Richard J. Pierce, Jr., What Do the Studies of Judicial Review of Agency Actions Mean?, 63 ADMIN. L. REV. 77, 84 (2011)). It should be noted, however, that the sample size for cases only applying Skidmore is small and accordingly may skew to the extremes in certain instances. Id. at 44 n.228. 216 Hickman & Krueger, supra note 62, at 1252–55. 217 Id. at 1252. 218 Id. 1253. 219 Id. 220 Id.; Christensen v. Harris County, 529 U.S. 576, 583 (2000). 221 Christensen, 529 at 578–79. 222 Id. at 582–86. Congressional Research Service 22 Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law interpretation.223 Only then did the Court turn to Skidmore.224 In applying Skidmore, the Court ignored Skidmore’s contextual factors, finding the agency’s interpretation “unpersuasive” compared with its own interpretation.225 There is some question as to whether the independent judgment conception differs from finding that a statute has a clear meaning.226 Some see the independent judgment conception as amounting to a court finding the statute clear.227 In these cases, Skidmore takes on a subordinate role to other tools of statutory interpretation rather than extending respect.228 The 2007 study found that the independent judgment conception represented the minority view in the lower courts, with 18.9% of the cases evaluated applying Skidmore in this way.229 The 2007 study identified a second approach it dubbed the “sliding-scale conception.”230 Under this view, application of Skidmore yields varying degrees of deference (or weight) to an agency’s interpretation based on a court’s evaluation of Skidmore’s contextual factors.231 “The sliding-scale model … counsels special consideration of agency interpretations that courts do not necessarily afford to the views of other litigants.”232 Describing this approach, the Supreme Court explained that Skidmore “has produced a spectrum of judicial responses, from great respect on one end to near indifference at the other.”233 What differentiates it from the independent judgment conception is that, although applying the sliding-scale approach may result in a court giving little to no weight to an agency interpretation, the court treats the agency’s interpretation as at least potentially deserving of greater respect than that of an ordinary litigant after evaluating Skidmore’s contextual factors.234 The 2007 study found that the sliding-scale conception was by far the most commonly used by the lower courts, accounting for 74.5% of all the uses of Skidmore in the study.235 While it was the most commonly applied approach to Skidmore in the 2007 study, the study authors noted that the Supreme Court had “not offered firm rules” for the application of Skidmore or provided an exhaustive list of factors for courts to consider in applying Skidmore.236 223 Id. 224 Id. at 587. 225 Id. 226 Hickman & Krueger, supra note 62, at 1254 (discussing differing views of Skidmore). 227 Id. 228 Id. 229 Id. at 1271. The independent judgment conception may have had greater purchase at the Supreme Court. See, e.g., Christensen, 529 U.S. at 587; Yates v. Hendon, 541 U.S. 1, 17–18 (2004) (finding agency guidance document “accords” with the Court’s interpretation of the statute based on other methods); Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 448–50 (2003) (finding the agency’s interpretation the same as the Court’s only after engaging in its own statutory interpretation). As noted above, the Supreme Court has, in general, been far less deferential to agency interpretations than the lower courts have. See William Eskridge & Lauren Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations From Chevron to Hamdan, 96 GEO. L. J. 1083, 1099 (2008). 230 Hickman & Krueger, supra note 62, at 1255. 231 Id. at 1255–56. 232 Id. at 1256. 233 United States v. Mead Corp., 533 U.S. 218, 228 (2001) (citing Aluminum Co. of Am. v. Central Lincoln Peoples’ Util. Dist., 467 U.S. 380, 389–390 (1984)). 234 Hickman & Krueger, supra note 62, at 1255. 235 Id. at 1271. 236 Id. at 1257. The study authors identified a number of different factors that courts used in their Skidmore analyses: thoroughness, formality, validity, consistency, agency expertise, longevity, and contemporaneity. Id. at 1281–91. As (continued...) Congressional Research Service 23 Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law Post-Loper Applications of Skidmore As of December 2024, there are only a handful of cases addressing the application of Skidmore since the Loper decision.237 In an early post-Loper example of the independent judgment approach, the U.S. Court of Appeals for the Fifth Circuit in Restaurant Law Center v. Department of Labor held that although courts should carefully consider long-standing and contemporaneous interpretations, those considerations never have “the power to control.”238 Rather, the court found that the statute clearly resolved the case and that Skidmore’s contextual factors could not outweigh the clear text of the statute.239 The court’s approach is consistent with the application of Skidmore prior to Loper.240 Nevertheless, the number of cases applying the principles set out in Loper is still quite small. It may take some time before trends in the application of Skidmore can be identified. Conversely, a handful of cases decided after July 2024 appear to have approached the application of Skidmore akin to the sliding-scale approach discussed above. In these cases, the courts, although not always ruling in favor of the agencies, engaged with the Skidmore indicia of persuasiveness as a way to measure the weight the agencies’ interpretations should be given. In one case, the federal district court for the Northern District of Ohio found that a DOL regulation had the “power to persuade” based largely on its thoroughness and validity.241 The court found the regulation was the product of “thorough consideration” during the notice and comment process and that the “reasoning behind the regulation is valid.”242 In another case from the U.S. Court of Appeals for the Eleventh Circuit, the court found another DOL interpretation “persuasive” because of its consistency over time.243 DOL, the court found, had maintained the same interpretation of the Fair Labor Standards Act for 80 years.244 Neither case, however, addressed whether a court must find the statute ambiguous before turning to Skidmore’s contextual factors. noted above, prior to Chevron, courts reviewing agency interpretations would often give weight to long-standing and contemporaneous interpretations. See THE CHEVRON DOCTRINE, supra note 41, at 134–37. Prior to Chevron, courts also sometimes looked to whether Congress had reenacted the relevant statute after the agency had adopted an interpretation of the statute. See, e.g., United States v. Cerecedo Hermanos, 209 U.S. 337, 339 (1908) (“[T]he re-enactment by Congress, without change, of a statute, which had previously received long continued executive construction, is an adoption by Congress of such construction.”); see also Kristin E. Hickman, Anticipating a New Modern Skidmore Standard, DUKE LAW JOURNAL ONLINE at 6 (forthcoming 2025), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4941144 (discussing Skidmore factors). 237 In an evaluation of the first twenty cases citing Loper, one media source found that only one cited Skidmore and only to hold that Skidmore did not apply. Robert LaFolla, Courts Show Little Interest in Skidmore as a Chevron Alternative, BLOOMBERG LAW (Jul. 29, 2024), https://news.bloomberglaw.com/daily-labor-report/courts-show-littleinterest-in-skidmore-as-a-chevron-alternative. 238 120 F.4th 163, 174 (5th Cir. 2024) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). 239 Id. 240 See Kristin E. Hickman, Anticipating a New Modern Skidmore Standard, DUKE LAW JOURNAL ONLINE at 8 (forthcoming 2025), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4941144 (noting that in addition to the Fifth Circuit, the U.S. Courts of Appeals for the Second, Third, Eighth, Ninth, Federal, and D.C. Circuits have all held that Skidmore applies when interpreting an ambiguous statute). 241 Harding v. Steak N Shake, Inc. No. 1:21-cv-1212, 2024 WL 3833341, at *8 (N.D. Ohio Aug. 15, 2024). 242 Id. 243 Perez v. Owl, Inc., 110 F.4th 1296, 1307 (11th Cir. 2024). 244 Id. Other notable cases where Skidmore was discussed include Gonzales & Gonzales Bonds & Ins. Agency, Inc. v. DHS, 107 F.4th 1064, 1085 (9th Cir. 2024) (Johnstone, J., concurring) (arguing that the Department of Homeland Security’s interpretation of the Vacancies Reform Act is persuasive because it was “thorough, reasoned, and consistent”); In re MCP No. 185, No. 24-7000, 2024 WL 3650468, at *6 (6th Cir. Aug. 1, 2024) (Sutton, C.J., concurring) (arguing that the Federal Communications Commission’s interpretation of “common carrier” to include (continued...) Congressional Research Service 24 Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law The U.S. Court of Appeals for the Ninth Circuit has also begun applying Skidmore. In an appeal decided in September 2024, a panel of the Ninth Circuit applied Skidmore in what appears to be a highly deferential way.245 The appeal arose from a decision of the Bureau of Immigration Appeals (BIA) interpreting the meaning of crimes involving moral turpitude found in the Immigration and Nationality Act.246 The Ninth Circuit concluded that BIA’s interpretation was “entitled to” Skidmore deference.247 The court concluded that BIA’s interpretation was entitled to “deference” because it was “thorough and well-reasoned,” “consistent with judicial precedent,” and “consistent with the generic definition of theft.”248 The court did not determine whether BIA’s interpretation was the best interpretation as the Supreme Court directed in Loper, nor did the court engage in its own statutory analysis.249 The Ninth Circuit’s decision was announced in a reported decision, which will have binding effect on future Ninth Circuit panels and the district courts within the geographic bounds of the Ninth Circuit. It is not clear whether the Ninth Circuit’s more deferential approach to Skidmore will be applied in future cases. More broadly, it will take some time for any trends to emerge in how the courts are (or are not) applying Skidmore. Delegations from Congress Following Loper, the judiciary will also confront questions about whether and to what extent Congress has delegated authority to an agency. If the primary question courts faced applying the Chevron framework was whether the statute was ambiguous, one of the most important questions courts will face under Loper is whether Congress delegated authority to the agency to resolve the question at issue in the case. As the Supreme Court held in Loper, “[i]n a case involving an agency, of course, the statute’s meaning may well be that the agency is authorized to exercise a degree of discretion.”250 As discussed previously, the Court in Loper laid out a handful of examples to illustrate where Congress had delegated certain powers to an agency. In one set of examples, the Court pointed to statutes that expressly delegated to agencies the power to define statutory terms.251 In another set of examples, the Court cited statutes that delegated discretionary regulatory authority to agencies.252 In a third category, the Court explained that Congress sometimes delegates to agencies the authority to “fill up the details” of statutory schemes.253 The Court appears to have treated these categories as illustrative, not intending to furnish an exhaustive list of ways in which Congress might delegate authority to an agency.254 The Court left open whether delegations must be express or whether courts could recognize implied delegations. At least one commentator has argued that the best understanding of the Court’s opinion is that although the Court did away with Chevron’s general presumption that ambiguities are delegations of interpretive authority, it did not state that all delegations must be internet service providers under the Telecommunications Act was not entitled to respect because its interpretation was inconsistent across different presidential Administrations). 245 Lopez v. Garland, 116 F.4th 1032 (9th Cir. 2024). 246 Id. at 1037 (citing 8 U.S.C. § 1227(a)(2)(A)(ii)). 247 Id. at 1041. 248 Id. at 1040–41. 249 Id. 250 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2263 (2024). 251 Id. at 2263 n.5. 252 Id. at 2263 n.6. 253 Id. at 2263 (quoting Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825)). 254 See id. Congressional Research Service 25 Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law express.255 For example, this commentator argued, delegations to “fill up the details” “might be discerned not from express delegation, but simply from Congress leaving essential details incompletely specified.”256 To read Loper to require express delegations would, this argument goes, cut against a background principle of statutory interpretation that holds that “what a legislature may do explicitly, it may do implicitly.”257 Whether and to what extent courts will recognize implicit delegations is yet to be seen. Post-Loper decision and as of the time of this writing, few courts have addressed the delegation issue in any depth.258 More fundamentally, in light of the Court’s discussion of congressional delegations, some have questioned whether the Loper decision changed much at all. One law professor has argued that the Court’s acknowledgement that courts must continue to respect statutory delegations from Congress has “recreated” Chevron “under a different label: ‘Loper Bright delegation.’”259 Others have argued that something like Chevron deference may be inevitable.260 One reason that Chevron likely took on such an important role in the lower courts is the differential capacity of the Supreme Court and the lower federal courts to engage in independent review of statutory interpretations advanced by agencies. While the Supreme Court hears roughly 75 cases per year—a handful of which involve agency interpretations of law—each lower court might handle thousands of cases per year.261 Some contended that Chevron saved lower courts time by permitting them to engage in meaningful statutory review without having to start from scratch.262 Removing this tool, some argue, will add to the already heavy burden of the federal courts.263 That additional burden may create an incentive for the lower courts to apply Loper in ways that 255 Adrian Vermeule, Implied Delegations After Loper, YALE J. ON REG.: NOTICE AND COMMENT BLOG (Jul. 9, 2024), https://www.yalejreg.com/nc/implied-delegations-after-loper-by-adrian-vermeule/. 256 Id. 257 Id. 258 A decision by the U.S. Court of Appeals for the Fifth Circuit evaluated a claim by the Department of Health and Human Services (HHS) that the No Surprises Act delegated authority to the agency to prescribe a standard of review for a system of arbitration created by the statute, but the court rejected the government’s position. Tex. Med. Ass’n, v. HHS, 110 F.4th 762, 775 (5th Cir. 2024). The court held that Congress explicitly left how to weigh certain statutory factors to the individual arbitrators—not to HHS. Id. HHS, accordingly, lacked the authority to issue a regulation creating a standard of review directing arbitrators to assign certain weights to statutory factors. Id. at 776. 259 Adrian Vermeule, Chevron by Any Other Name, THE NEW DIGEST (Jun. 28, 2024), https://thenewdigest.substack.com/p/chevron-by-any-other-name; Adrian Vermeule, The Deference Dilemma, 31 GEO. MASON L. REV. 619, 630 (2024) (arguing prior to the Loper decision that the Court might overrule Chevron and replace it with some kind of evaluation of delegation on a case-by-case basis). For Professor Vermeule, Chevron step two cases can just be reconceptualized as Loper delegation cases without losing much in translation. “That is, cases that used to be labeled as ‘deference to reasonable agency interpretations of ambiguous statutes’ will now be called ‘independent judicial interpretation that identifies a single best answer, an answer that consists of a delegation of discretionary authority to agencies within a given range.’” Adrian Vermeule, Chevron by Any Other Name, THE NEW DIGEST (Jun. 28, 2024) https://thenewdigest.substack.com/p/chevron-by-any-other-name. 260 See Nicholas R. Bednar & Kristin E. Hickman, Chevron’s Inevitability, 85 GEO. WASH. L. REV. 1392, 1458 (2017) (arguing at the time that something like Loper delegation might take hold were Chevron overruled). 261 U.S. COURTS, FEDERAL JUDICIAL CASELOAD STATISTICS (2022), https://www.uscourts.gov/statistics-reports/federaljudicial-caseload-statistics-2022 (last [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR48320. Public record. Not legal advice.