Today's Supreme Court and the Administrative State

Mark Tushnet

I’ve been thinking about the actual scope of Loper mostly out of intellectual curiosity because I don’t have to teach or write about it in detail. Chevron’s core justification, I think, is that agencies have expertise in the subject matter such that they are more likely to arrive at a better interpretation of an ambiguous statutory term than generalist courts would (and have more democratic accountability than the courts do). 

That’s probably right with respect to matters at the core of an agency’s mission—determining levels of safe exposure to pollutants for the EPA, determining whether some new drug is safe and effective for the FDA pursuant to already specified criteria of safety and efficacy. But the interpretive issue in neither Chevron nor Loper lies at the agency’s core expertise. With Chevron political accountability matters (EPA adopted its interpretation of the relevant statutory term because that’s what the Reagan deregulatory agenda sought). So, overruling Chevron might diminish agency political accountability (though most of the critical comments about Loper focus on the expertise dimension), 

When I taught Chevron I managed to come up with an account along these lines: The EPA might know more about the details of investment choices polluting companies make with respect to upgrading or replacing buildings within a single complex. And something similar might be said about the Fisheries agency’s knowledge of the business side of fishing, affected by who has to pay for observers. But, it seems to me, if that’s so the agency’s lawyers should be able to explain the content of that knowledge to a generalist judge without extraordinary difficulty. And that, it seems to me, is what one part of Skidmore is about. (Perhaps there’s a form of professional knowledge built upon experience that can’t be communicated effectively to non-specialists—maybe “thinking like a lawyer” is an example, and so might be “thinking like an environmental regulator.”) 

So one aspect of thinking about Loper’s impact is to see what kinds of interpretive issues are likely to arise. The NY Times had an article about that, which I’ve mined for the following examples. The bottom-line is that the more detailed examination suggests that Skidmore will deal with some issues, that the mixed-questions-of-law-and-fact doctrine of Hearst Publications will deal with others, and, as Adrian Vermeule points out, the acknowledgement that Congress can and sometimes does delegate interpretive authority, with still others—and the story doesn’t give enough detail about the relevant statutes to be able to assess the academics' comments about Loper’s adverse impacts. Of course there’s going to be a period of litigation uncertainty and in the short run agency lawyers will have to come up with more arguments than they did under the Chevron regime. And of course we don’t know how judges are going to respond to the Skidmore etc. arguments. But, the face of the opinion in Loper gives agency lawyers more than a little to work with. 

The easier examples involve “labor agencies,” in the Times’s terms. One deals with “the level below which salaried workers automatically become eligible for time-and-a-half overtime pay.” That seems to me a pretty close replay of Hearst Publications. Another example offered involves whether individual workers who protects working conditions are engaging in protected concerted action. The story notes that the NLRB “often concludes” that they are—which suggests that Skidmore kicks in. 

For the FDA the story quotes one pro-life activist who suggests that challenges to approval of mifepristone are “likely to get a better reception ‘when the FDA is no longer given the benefit of the doubt.’” But, the activist doesn’t identify any ambiguous statutory term that the FDA interpreted in approving the medication (perhaps we would say that it applied the statutory term “safe and effective” and in so doing implicitly interpreted it, but that’s not a standard way of describing applications of statutory terms—and the “arbitrary and capricious” test seems designed to deal with applications, not Chevron, so it’s not clear that there’s any issue as to which pre-Loper the FDA was being given the benefit of the doubt). The article refers to industry challenges to the FDA’s power to require pre-market approval but doesn’t refer to relevant statutory language—my guess is that this is indeed a case where Loper might make a difference in methodology (though the long-ish history of pre-market approval suggests that applying Skidmore would be sufficient to sustain the FDA’s practice.) Another story I read suggested that the FDA’s rules about what’s required to show that a medication is safe and effective—the “gold standard” of large enough double blind studies—would be vulnerable. The gold standard is, I think, an agency resolution of a statutory ambiguity, but again my sense is that Skidmore and the mixed-questions doctrine would handle the problem reasonably well. 

With respect to health care, the story doesn’t identify statutory language, but here my guess is that Loper will indeed sometimes make a difference. The story does mention “regulation[s] … grounded in interpretations of laws that date back decades,” but—if “date back decades” modifies “interpretations,” we’re in Skidmore land again. 

Finally, there’s the EPA, which has been the focus of a lot of the commentary. The Times story actually doesn’t identify any statutory language where Loper might make a difference—it simply says that specific regulations to implement the Inflation Reduction Act “could now be more legally vulnerable.” But, as with Chevron itself, we’d need to know whether resolving statutory ambiguity would implicate the EPA’s core expertise and its political accountability, and we can’t know that without specific example. 

My bottom line is that Loper might be a big deal but that built into it are limitations that could substantially reduce its impact depending on how judges interpret both the core holding and the limitations. My guess is that we’re likely to see a battle between the Fifth Circuit and the D.C. Circuit over Loper’s “real” meaning,” with the D.C. Circuit following the notes (“here are a couple of ways to cut back on the modern administrative state, though much is left intact”) and the Fifth Circuit following the tune (“we don’t like the modern administrative state”). 

(I don’t plan to say anything about Jarkesy except to note that it’s about limiting the ability of agency actors to award what amount to monetary damages, and that a great deal of the work of the modern administrative state is done through enforcement via injunction and fixed though often way too low fines, which probably aren’t implicated in Jarkesy. Here too it’s a tune versus notes situation.)