Loper Bright v. Raimondo as a positive-feedback-loop for judicial activism

“When does an alpha amino acid polymer qualify as a protein?” Associate Justice Elena Kagan raised in her dissent to Loper Bright Enterprises v. Raimondo, more (in)famously known as the case that overruled the Chevron deference. Kagan posited this question in a series of examples to which the scientific and technical expertise of agencies would be needed to interpret ambiguous statutory language. Loper glosses over this precedent, dangerously allowing judges ultimate interpretive primacy comparable to policy-making. Ironically, the case was decided under the premise of defending the law from agency aggrandization. By overruling Chevron, the court seized power beyond the scope allowed by the U.S.’s system of checks and balances

Under Chevron, courts would traditionally defer to agency expertise to interpret unclear statutes (e.g., Kagan’s “alpha amino acid polymer” query was a key issue in the District of Columbia case Teva Pharmaceuticals vs. FDA, argued in 2020). Therefore, the Chevron framework has prevented courts from making technical decisions concerning fields they are not experts in. The framework has two steps. In the event of statutory ambiguity, courts first evaluate if congressional intent is clear in the statute itself. If not, courts proceed to step two: is the agency’s “answer” to the ambiguity based on a permissible construction of the statute?

So long as the interpretation is not unreasonable, the court delegates interpretive power to the agency in charge of administering the statute in question. Notably, “deference” should not be read as courts shirking authority but rather a move of judicial restraint – judges focus on prior legal precedent rather than re-interpreting the law based on policy preferences. With Chevron, judicial review stopped at determining when an ambiguity occurs rather than what the answer to the ambiguity should be, lest the agency’s attempt to fill the statutory gap is unreasonable.

The majority of the court disagrees with these views, believing that Chevron promotes the relegation of judicial authority to agencies, augmenting their scopic process. Chief Justice John Roberts and the concurring justices are gripped by a picture of avaricious agencies: “constitutionally questionable apparatus are allowed to operate with a power that they grant to themselves.” Indeed, Chevron ex-critic Cass R. Sunstein invoked Marbury v. Madison’s metaphor to arraign Chevron as analogous to foxes [agencies] guarding hen houses [the law]. “Those who are limited by law should not be authorized to decide on the scope [of their own authority].”

But this picture is, at best, a fallacy (to invoke a term often used by Roberts in defense of Loper, it is a “fiction”). Although agencies are unelected, their credibility is derived from Congress granting them administrative authority. Therefore, Chevron can be seen as a “carefully calibrated framework.” Congress writes laws and delegates their execution to agencies, and agencies are then held accountable by the judiciary. Agencies follow the instructions laid out by Congress, whose directives are intentionally flexible (e.g., “ensuring the rule is in the public interest”). Roberts views ambiguities as unintentional errors on the part of Congress, where the potentiality for multiple interpretations at agencies’ disposal is a dangerous one. But in reality, ambiguities enable agencies the flexibility to keep up with science and update the law accordingly.

Chevron’s public reception has always been underlain by partisan values – previously, the right espoused the doctrine as a method to curtail the “policymaking authority of unelected [regulation-favoring] judges.” Today, this political valence has evidently flipped; nonetheless, partisan-dependent reactions show how Chevron has always been a guardrail to judicial activism. Barnett et al. (2018) found that Chevron indeed “curbs” the frequency of partisan rulings: liberal judiciaries rejected conservative agency interpretations eighty-two percent of the time sans deference but only forty-nine percent of the time with it. Similarly, conservative judiciaries rejected liberal agency interpretations with eighty-two percent frequency without using Chevron, thirty-four percent when they did. Ergo, the move to nullify Chevron – four decades of legal precedent – can be read as a positive feedback loop for judicial overreach: an abuse of judicial power that allows for ever more abuses of judicial power.

 In his penned opinion, Roberts claimed that the editing of Chevron into epicycles (Chevron Step Zero, the Mead question, and the major questions exception) indicates that the doctrine’s foundation is shaky. He avoids negotiation of Chevron at all: either it stands, or it does not. Taking the latter move rather than “domesticat[ing]” it, as some academics have called for, indicates his resolve to do away with its guardrails. His all-or-nothing approach to precedent and statute is judicially meta (i.e., reflexive): the question of overruling Chevron presents as an interpretive dilemma on-court power, whose power is to interpret. Roberts addresses this dilemma via oversimplification, ignoring Kagan’s intricate examples of where court expertise could fail; for Roberts, any question of statute is a question of law, and any question of law is a role for the judiciary. More bothersome is that his opinion permits courts to provide answers to ambiguity rather than merely identify them.

 Roberts’ claim to epistemic authority falls short in real-time: in Sackett v. EPA, SCOTUS relied on a dictionary definition of “waters of the United States,” rather than the Environmental Protection Agency’s scientifically-backed interpretation. The former restricted the definition to wetlands physically adjacent to a river or lake, but the latter relied on hydrologic realities of any waterway. Consequently, the court’s decision created regulatory deficiencies that will harm regions without “continuous surface connections,” a narrowing of what constitutes a “body of water.”

 Chevron has always been in the “penumbras,” implied constitutional rights, (to adopt a phrase from Griswold v. Connecticut) of administrative law, “entrenched precedent” that respects Congressional authority. As long as judges decide if statutes are ambiguous and whether they delegate law-interpreting power, then it is not offensive to the Constitution. In Loper, however, this is abandoned. The SCOTUS majority enhanced the scope of their power in seizing ultimate interpretive primacy for themselves, afraid to humbly acknowledge its ignorance. In doing so, Loper flips the power script of legal interpretation[1] [2] .

Edited by Kayla Nia