Gillian Metzger

Under the prior Chevron regime, if an agency offered a reasonable interpretation of an ambiguous statute, a court was supposed to defer. Now, what Loperbright says, basically, is that a court is required to exercise independent judgment in determining the meaning of a statute.

Under the prior Chevron regime, if an agency offered a reasonable interpretation of an ambiguous statute, a court was supposed to defer. Now, what Loperbright says, basically, is that a court is required to exercise independent judgment in determining the meaning of a statute.

The court can give weight to a longstanding and contemporaneous interpretation by an agency or an interpretation by an agency that it thinks has persuasive power. It may also read the statute as actually delegating interpretive authority to the agency, but it's the court. that exercises independent judgment. And so the power moves from the agency to the court.

The court can give weight to a longstanding and contemporaneous interpretation by an agency or an interpretation by an agency that it thinks has persuasive power. It may also read the statute as actually delegating interpretive authority to the agency, but it's the court. that exercises independent judgment. And so the power moves from the agency to the court.

I think it's a really complicated question. Lying in the backdrop to this decision was a view that when agencies offer interpretation of statutes that courts have to defer to, that that allows agency to usurp the constitutional function of the courts to say what the meaning of the law is. That was partially why the court had pulled back so much on deferring under Chevron in recent years.

I think it's a really complicated question. Lying in the backdrop to this decision was a view that when agencies offer interpretation of statutes that courts have to defer to, that that allows agency to usurp the constitutional function of the courts to say what the meaning of the law is. That was partially why the court had pulled back so much on deferring under Chevron in recent years.

That idea of the sort of constitutional role of the court suggests that courts should always be exercising independent judgment. But it's perfectly possible for Congress to decide that it wants agencies to exercise more power and to determine what the meaning of terms would be.

That idea of the sort of constitutional role of the court suggests that courts should always be exercising independent judgment. But it's perfectly possible for Congress to decide that it wants agencies to exercise more power and to determine what the meaning of terms would be.

If the court weren't to recognize that, that would be the court usurping Congress's power to structure the executive branch and to structure legal regimes. So when the court in Loper Bright determined that it was necessary for courts to undertake independent judgment— It didn't actually rely on this constitutional idea.

If the court weren't to recognize that, that would be the court usurping Congress's power to structure the executive branch and to structure legal regimes. So when the court in Loper Bright determined that it was necessary for courts to undertake independent judgment— It didn't actually rely on this constitutional idea.

Instead, it said that a statute that sort of governs how agencies operate called the Administrative Procedure Act that goes back to 1946, that that statute required courts to take independent judgment in reviewing agency interpretations. But it also wanted to leave Congress, as it should, room to give agencies power to interpret statutes when that's what Congress wanted.

Instead, it said that a statute that sort of governs how agencies operate called the Administrative Procedure Act that goes back to 1946, that that statute required courts to take independent judgment in reviewing agency interpretations. But it also wanted to leave Congress, as it should, room to give agencies power to interpret statutes when that's what Congress wanted.

And in order to do that, it had to say, sometimes the best reading of a statute means you delegate to an agency. And once you start recognizing the complexity of how a statute might actually give agencies the kind of authority that they were wielding, then you can't just go with a we will never defer, right?

And in order to do that, it had to say, sometimes the best reading of a statute means you delegate to an agency. And once you start recognizing the complexity of how a statute might actually give agencies the kind of authority that they were wielding, then you can't just go with a we will never defer, right?

Then you need to be sensitive to context and to statutory interpretation and to the different roles agencies play in different aspects of statutory regimes. Right.

Then you need to be sensitive to context and to statutory interpretation and to the different roles agencies play in different aspects of statutory regimes. Right.

My colleague Tom Merrill has a recent article assessing Loper Bright where he really emphasizes how much time it's going to take to move from the Chevron regime to this new regime and to figure out, for example, what kind of statutory language means the agency is being delegated a degree of discretion and what kind of language doesn't mean that and when it is agencies can give weight to longstanding agency interpretations and when they can't.

My colleague Tom Merrill has a recent article assessing Loper Bright where he really emphasizes how much time it's going to take to move from the Chevron regime to this new regime and to figure out, for example, what kind of statutory language means the agency is being delegated a degree of discretion and what kind of language doesn't mean that and when it is agencies can give weight to longstanding agency interpretations and when they can't.

as well as questions like what will happen with other doctrines the court has constructed precisely to rein in Chevron deference.

as well as questions like what will happen with other doctrines the court has constructed precisely to rein in Chevron deference.