What’s in a name? A [judicial deference] rose by any other name would smell as sweet

The Supreme Court ended its 2023 term with a series of blockbuster decisions, including Loper Bright Enterprises v. Raimondo. That ruling ended the 40-year reign of the Chevron deference doctrine, which was based on the Court’s decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 437 U.S. 837 (1984). The Chevron doctrine, now overruled, mandated judicial deference to federal agencies’ reasonable interpretations of ambiguous statutory provisions that those agencies are charged with administering.

As Juliet noted long ago, however, a name itself may not hold much significance if the same concept (or person) is given a different name but otherwise remains the same. The names of various types of deference to federal administrative agencies are legion, and at least three Supreme Court cases leave other types of deference to agencies available for potential future application. Those three cases are Loper Bright, Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, and Skidmore v. Swift & Co. To be sure, names can be important, and as Professors Kent Barnett and Christopher Walker observed in their amicus brief in Loper Bright, the name Chevron was widely recognized by both congressional and agency drafters as a key interpretative standard. Nonetheless, the question remains: whether that name alone precludes other types of deference.

Deference for express delegations to an agency

Although Loper Bright abruptly ended deference to administrative statutory interpretations, it left open one direct form of mandatory deference. As the Chief Justice put it: “In 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. Congress has often enacted such statutes. For example, some statutes ‘expressly delegate[ ]’ to an agency the authority to give meaning to a particular statutory term.” He cites as examples statutory provisions of the Clean Air Act, the Clean Water Act, and the Atomic Energy Act. The Chief Justice majority opinion notes that judicial review in such cases is limited: “The court fulfills that role by recognizing constitutional delegations, ‘fix[ing] the boundaries of [the] delegated authority,’ and ensuring the agency has engaged in ‘reasoned decisionmaking’ within those boundaries” (emphasis added; internal citation omitted). While scrupulously avoiding the term “deference,” the Chief Justice’s opinion certainly implies a level of judicial recognition to agencies acting within delegated congressional authority.

But soft! What light from yonder window breaks? Deference to agency procedural decisions in Vermont Yankee

Although Loper Bright signaled major judicial skepticism of any doctrine that requires deference to an agency’s interpretations of law, even concerning ambiguous statutes, it still left intact other cases that do provide some deference. The Court’s opinion in Loper Bright does not reference, let alone question, the Supreme Court’s 1978 decision in Vermont Yankee. That decision, authored by then-Justice Rehnquist for a unanimous Court, held that the courts were required to defer to an agency’s selection of procedural standards for conducting hearings related to potential rulemakings. The Court’s opinion made clear that it considered potential application of section 553 of the APA as part of the basis of its decision in favor of judicial deference. The discussion in Vermont Yankee of the express text and legislative history behind this provision of the APA appears to be quite consistent with the discussion of a different section of the APA in Loper Bright.

Vermont Yankee reflects a markedly different attitude about judicial latitude for agency decision-making—at least as to procedural matters. As Justice Rehnquist put it: “But this much is absolutely clear. Absent constitutional constraints or extremely compelling circumstances, the administrative agencies should be free to fashion their own rules of procedure, and to pursue method of inquiry capable of permitting them to discharge their multitudinous duties” (quotation marks omitted). Justice Rehnquist emphasized the limits of judicial review (i.e., “deference”) as to informal rulemaking procedures, concluding that the searching review undertaken of the NRC (previously the Atomic Energy Commission) by the D.C. Circuit: “In sum, this sort of unwarranted judicial examination of perceived procedural shortcomings of a rulemaking proceeding can do nothing but seriously interfere with that process prescribed by Congress.” This tone suggests an entirely different “light” breaking through the window of judicial observation of agency action than that found in Loper Bright. Whatever the differences, however, the rule in Vermont Yankee appears to stand for deference to agency procedural standards for rulemaking.

Skidmore deference to agency action—A distinction without a difference?

Loper Bright acknowledged that courts continue to owe a degree of respect for certain agency decisions. Invoking its 1944 Skidmore decision, Loper Bright explained that “the interpretations and opinions of the relevant agency, made in pursuance of official duty and based upon . . . specialized experience, constitute[ ] a body of experience and informed judgment to which courts and litigants could properly resort for guidance, even on legal questions.”

Skidmore dealt with a guidance document issued by the administrator of the Fair Labor Standards Act of 1938. That guidance document contained some general examples of when an employee fell within the Act’s coverage for time “worked” (and thus was entitled to a wage) even when she was inactive, so long as she was on-call. The Court in Skidmore gave the Department of Labor’s interpretative guidance considerable deference. Justice Jackson, writing for the Court, observed: “We consider that the rulings, interpretations and opinions of the Administrator under this Act, 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.”

Although the Loper Bright decision states that Skidmore was correctly decided because it left the ultimate call to judges rather than the Wage and Hours Administrator, this may well be simply a difference without a distinction. If, as Skidmore holds, a prior administrative guidance document should be disregarded only upon justification composed of “very good reasons,” then isn’t that deference by any other name? If so, how does one square the favorable citation of Skidmore by the majority in Loper Bright with the current anti-deference crusade?

“Wisely and slowly, they stumble that run fast”

Just as Friar Lawrence admonished young lovers not to move too hastily, the Supreme Court should have considered the same admonishment in its rush to demolish Chevron. The Court in Loper Bright took a wrecking ball to a 40-year-old doctrine that had been applied (perhaps not always easily) in thousands of lower court decisions and even by the high Court. What is now left after this fast-paced demolition derby is chaos in the judicial system.

Consider the current plight of a lawyer seeking to either challenge or defend a federal administrative action. First, the lawyer will have to review the underlying statute (such as the Clean Air Act) to see if it “expressly delegates” discretion to the agency. If so, then some level of judicial deference applies per Loper Bright. Second, the lawyer will have to determine whether the challenge is one focused on the procedure employed by the agency or on the substance. If it's a procedural challenge, then the deference required under Vermont Yankee still applies. Third, the lawyer will have to ascertain whether a judicial officer might apply a Skidmore style of deference, requiring that the challenging party justify departing from the administrative pronouncement by “very good reason.” Fourth, the lawyer will have to develop an argument for what is the “best” interpretation of the statute. This will essentially involve climbing into the judge’s head to ascertain how he or she will read the statute.

All these potential options suggest that the Court’s decision in Loper Bright, while perhaps designed to establish a bright-line rule, has in fact left vague and alternative standards of deference for the advocate to grapple with in the future.