In this episode, Gwen and Marc examine Loper Bright v. Raimondo, the Supreme Court decision that formally overruled Chevron deference after forty years. They begin with an analogy about inconsistent babysitters to explain the core concern motivating the Court: agency interpretations that change across administrations, creating instability and unpredictability.
They then turn to the facts of the case itself, involving a federal rule requiring herring fishing companies to pay for onboard observers. Under Chevron, the agency’s interpretation likely would have survived as reasonable. Instead, the Court used the case to eliminate Chevron entirely, holding that courts must exercise “independent judgment” when interpreting statutes—even when Congress has left ambiguity.
From there, Gwen and Marc organize the critique of Loper Bright around three themes. First, they argue that the Court rewrote history by treating Chevron as a modern aberration, despite centuries of judicial deference to agency expertise. Second, they explain how the decision misunderstands modern governance, where Congress necessarily relies on agencies to interpret flexible statutory language. Third, they show how the practical consequences are already unfolding in the lower courts, producing circuit fragmentation rather than stability.
Using concrete examples—from food labeling to labor law to environmental regulation—they illustrate how replacing agency expertise with judicial interpretation affects everyday life. The episode closes by exploring the democratic implications of shifting interpretive power from politically accountable agencies to life-tenured judges.
What They Cover in This Episode
- The facts behind Loper Bright
- How Chevron worked and why it mattered
- The Court’s reading of the APA
- “Independent judgment” and the “single best reading”
- Pre-Chevron history of judicial deference
- Judges as generalists versus agency experts
- Circuit fragmentation after Chevron’s demise
- Democratic accountability and judicial power
00:00:14 --> 00:00:17 Hello, and welcome to Administrative Remedies,
00:00:17 --> 00:00:19 because you can't fix what you don't understand.
00:00:19 --> 00:00:21 Brought to you in part by the University of Tulsa
00:00:21 --> 00:00:24 College of Law. I'm Gwendolyn Savitz, an associate
00:00:24 --> 00:00:26 professor here at TU and the associate dean of
00:00:26 --> 00:00:28 research and intellectual life. And I'm Mark
00:00:28 --> 00:00:31 Rourke. I'm the dean of the College of Law. We'll
00:00:31 --> 00:00:33 be breaking down complex doctrines with real
00:00:33 --> 00:00:35 -life analogies and examples to demystify the
00:00:35 --> 00:00:37 world of administrative law for everyone trying
00:00:37 --> 00:00:39 to understand how government actually works.
00:00:40 --> 00:00:41 Agencies are the main way the federal government
00:00:41 --> 00:00:44 gets things done. It's not through Congress for
00:00:44 --> 00:00:46 reasons we'll be addressing over the course of
00:00:46 --> 00:00:51 this series. Last time we talked about Skidmore,
00:00:52 --> 00:00:53 the doctrine that says agency interpretations
00:00:53 --> 00:00:56 deserve respect only to the extent they're persuasive.
00:00:56 --> 00:00:58 Today, we're talking about the case that left
00:00:58 --> 00:01:01 nothing else standing, Loeb or Bright, the Supreme
00:01:01 --> 00:01:03 Court decision that overturned Chevron. After
00:01:03 --> 00:01:07 40 years overturned Chevron. Yes, after 40 years.
00:01:07 --> 00:01:09 But before we dig into why critics think this
00:01:09 --> 00:01:12 decision was wrong, we need to give the other
00:01:12 --> 00:01:14 side a fair hearing because there was a real
00:01:14 --> 00:01:17 problem Loperbright was trying to solve. So let's
00:01:17 --> 00:01:20 go back to the babysitter. We can do that. You
00:01:20 --> 00:01:23 need somebody last minute. You've decided to
00:01:23 --> 00:01:25 use a babysitting service. So you leave the same
00:01:25 --> 00:01:28 instructions that you regularly do. Keep the
00:01:28 --> 00:01:30 kids safe when they play outside. Reasonable
00:01:30 --> 00:01:34 expectation. That is certainly a minimum standard
00:01:34 --> 00:01:36 for a babysitter. Monday's babysitter, we're
00:01:36 --> 00:01:39 going to call her Soraya Stringent, interprets
00:01:39 --> 00:01:42 this very carefully. If the kids are on scooters,
00:01:42 --> 00:01:44 they need to be wearing helmets. They can't leave
00:01:44 --> 00:01:47 the yard. There's no climbing trees. She's reapplying
00:01:47 --> 00:01:50 sunscreen every hour. Reasonable expectation,
00:01:51 --> 00:01:54 a court under Chevron would defer to those choices.
00:01:54 --> 00:01:58 It would. And so then Wednesday comes, and this
00:01:58 --> 00:01:59 time you have a different babysitter from the
00:01:59 --> 00:02:03 service. This is Lindsay Laissez -Faire. Same
00:02:03 --> 00:02:05 instructions, keep the kids safe when they play
00:02:05 --> 00:02:08 outside. But Lindsay is interpreting this a bit
00:02:08 --> 00:02:10 differently. The kids don't need helmets if they're
00:02:10 --> 00:02:13 on scooters. They can walk to the park that's
00:02:13 --> 00:02:15 three blocks away. It's fine if they climb trees.
00:02:16 --> 00:02:19 That'll build confidence. Also reasonable. I
00:02:19 --> 00:02:21 mean, kids did this stuff in the 90s, and we
00:02:21 --> 00:02:24 mostly survived. We did. So both interpretations
00:02:24 --> 00:02:27 are defensible. Both babysitters can point to
00:02:27 --> 00:02:30 legitimate safety philosophies. And under Chevron,
00:02:30 --> 00:02:33 courts would defer to either one. So what's then
00:02:33 --> 00:02:36 the problem? Friday comes, and now Soraya's back.
00:02:37 --> 00:02:39 The kids have to have helmets again. There's
00:02:39 --> 00:02:42 no park. They can't climb trees. The rules have
00:02:42 --> 00:02:44 changed again, even though the parents' instructions
00:02:44 --> 00:02:48 never changed. So the kids are not happy. Okay,
00:02:48 --> 00:02:50 and this is the case for Loper Bright, right?
00:02:50 --> 00:02:53 Stability, predictability. Yes, it is a real
00:02:53 --> 00:02:56 problem, and it's a fair criticism of how Chevron
00:02:56 --> 00:03:00 worked in practice. But today, we're going to
00:03:00 --> 00:03:03 explain why critics think the cure is worse than
00:03:03 --> 00:03:06 the disease. Why replacing agency expertise with
00:03:06 --> 00:03:08 judicial interpretation creates even bigger problems.
00:03:09 --> 00:03:11 Because the flip -flopping babysitters aren't
00:03:11 --> 00:03:13 the only characters in the story. There's also
00:03:13 --> 00:03:16 the overconfident grandparents. There are grandparents
00:03:16 --> 00:03:19 who show up, see helmets and sunscreen, and absolutely
00:03:19 --> 00:03:22 lose it. In my day, we didn't need any of this.
00:03:22 --> 00:03:24 The problem with kids today is you coddle them
00:03:24 --> 00:03:27 too much. And they override the babysitter, who's
00:03:27 --> 00:03:29 been there all day watching the kids, making
00:03:29 --> 00:03:32 reasonable judgments, because they think they
00:03:32 --> 00:03:34 know the single correct meaning of be careful.
00:03:34 --> 00:03:37 Courts basically replacing the babysitter. Yes,
00:03:37 --> 00:03:40 that's Loper Bright. But first, let's talk about
00:03:40 --> 00:03:44 what actually happened in the case. So Loper
00:03:44 --> 00:03:46 Bright Enterprises is a herring fishing company.
00:03:47 --> 00:03:49 They operate in federal waters off the Atlantic
00:03:49 --> 00:03:52 Coast, more like New Jersey area. Herring fishing.
00:03:52 --> 00:03:54 Not very many constitutional cases that come
00:03:54 --> 00:03:58 out of herring fishing. Yeah, that's how a lot
00:03:58 --> 00:04:00 of these cases seem to work. There's pretty mundane
00:04:00 --> 00:04:03 facts, and from that we get massive doctrinal
00:04:03 --> 00:04:06 shifts. So for this case, under the Magnuson
00:04:06 --> 00:04:09 -Stevens Act, the National Oceanic and Atmospheric
00:04:09 --> 00:04:11 Administration has the authority to implement
00:04:11 --> 00:04:14 fishery management plans. One requirement is
00:04:14 --> 00:04:16 that certain boats have to carry federal observers.
00:04:17 --> 00:04:20 Observers, you mean like people who watch them
00:04:20 --> 00:04:24 fish? Yes. These people are monitoring catch
00:04:24 --> 00:04:26 levels. They're ensuring compliance with the
00:04:26 --> 00:04:29 regulations. And Congress has specifically authorized
00:04:29 --> 00:04:32 these observers. But what Congress didn't clearly
00:04:32 --> 00:04:35 say was who pays for them. I see where this is
00:04:35 --> 00:04:39 going. So in 2020, NOAA issued a rule requiring
00:04:39 --> 00:04:41 the industry to pay for the observers. This is
00:04:41 --> 00:04:45 about $700 a day. And for a small fishing operation,
00:04:45 --> 00:04:48 that was about 20 % of their revenue. That seems
00:04:48 --> 00:04:51 like a pretty significant financial burden. Which
00:04:51 --> 00:04:53 is why these were such great plaintiffs. The
00:04:53 --> 00:04:56 fishing companies argued Congress never said
00:04:56 --> 00:04:58 we had to pay for this. And under Chevron, if
00:04:58 --> 00:05:01 Congress hasn't clearly spoken to an issue and
00:05:01 --> 00:05:03 the agency's interpretation is reasonable, the
00:05:03 --> 00:05:06 agency would likely win. Noah could point to
00:05:06 --> 00:05:08 the general authority to implement fishery management
00:05:08 --> 00:05:11 plans and say requiring industry funding is a
00:05:11 --> 00:05:13 reasonable way to implement that. But the court
00:05:13 --> 00:05:17 didn't apply Chevron. It did not. The court overruled
00:05:17 --> 00:05:20 Chevron entirely. Roberts wrote the majority
00:05:20 --> 00:05:21 opinion. Do you want to read the key holding
00:05:21 --> 00:05:25 here? Yeah. So Roberts said Chevron is overruled.
00:05:25 --> 00:05:27 Courts must exercise their independent judgment
00:05:27 --> 00:05:30 in deciding whether an agency has acted within
00:05:30 --> 00:05:34 its statutory authority as the Administrative
00:05:34 --> 00:05:37 Procedures Act requires. Careful attention to
00:05:37 --> 00:05:38 the judgment of the executive branch may help
00:05:38 --> 00:05:41 inform that inquiry. And when a particular statute
00:05:41 --> 00:05:44 delegates authority to an agency consistent with
00:05:44 --> 00:05:47 constitutional limits, courts must respect the
00:05:47 --> 00:05:50 delegation. while ensuring that the agency acts
00:05:50 --> 00:05:53 within it. But courts need not, and under the
00:05:53 --> 00:05:55 Administrative Procedures Act, may not defer
00:05:55 --> 00:05:58 to an agency interpretation of the law simply
00:05:58 --> 00:06:01 because a statute is ambiguous. So the key phrase
00:06:01 --> 00:06:04 here is independent judgment. Courts will no
00:06:04 --> 00:06:06 longer defer to any reasonable agency interpretation.
00:06:07 --> 00:06:09 Courts decide for themselves what this statute
00:06:09 --> 00:06:12 means. What was the court's reasoning here? There's
00:06:12 --> 00:06:14 a few things that Roberts was thinking about.
00:06:14 --> 00:06:16 First, he mentions the APA, the Administrative
00:06:16 --> 00:06:19 Procedure Act from 1946. That's the rule that
00:06:19 --> 00:06:22 requires courts to decide all relevant questions
00:06:22 --> 00:06:24 of law. Here's what he had to say about that.
00:06:25 --> 00:06:27 The Administrative Procedures Act specifies that
00:06:27 --> 00:06:30 courts, not agencies, will decide all relevant
00:06:30 --> 00:06:33 questions of law, rising on review of agency
00:06:33 --> 00:06:36 action, even those involving ambiguous laws.
00:06:37 --> 00:06:39 The APA part that he's quoting is the part that
00:06:39 --> 00:06:42 says all relevant questions of law. It definitely
00:06:42 --> 00:06:44 does not say even those involving ambiguous laws.
00:06:45 --> 00:06:48 But second, he argued that Chevron conflicted
00:06:48 --> 00:06:50 with the Constitution. So courts interpret laws.
00:06:51 --> 00:06:53 That's what Article 3 says they do. Deferring
00:06:53 --> 00:06:56 to agencies on any question of law means that
00:06:56 --> 00:06:58 courts are abdicating their constitutional role.
00:06:59 --> 00:07:01 But wait, didn't we talk about how courts have
00:07:01 --> 00:07:04 been deferring to agencies since before Chevron
00:07:04 --> 00:07:07 and really since before the Administrative Procedures
00:07:07 --> 00:07:10 Act? Yes, we did. We talked about cases going
00:07:10 --> 00:07:12 back decades before the APA where courts gave
00:07:12 --> 00:07:15 way to agency interpretations. And that's one
00:07:15 --> 00:07:17 of the major criticisms of Loper Bright, that
00:07:17 --> 00:07:20 it rewrites history. But we'll get to that. OK,
00:07:20 --> 00:07:22 so what about the fishing companies? Did they
00:07:22 --> 00:07:25 win? This is one of those cases where the facts
00:07:25 --> 00:07:27 matter so little that it doesn't even matter
00:07:27 --> 00:07:30 how it came out. The case was just remanded for
00:07:30 --> 00:07:32 the lower court to apply the new standard. So
00:07:32 --> 00:07:34 the impact here won't be on the herring fishing
00:07:34 --> 00:07:37 industry. It's about every agency interpretation
00:07:37 --> 00:07:40 of every ambiguous statute across the entire
00:07:40 --> 00:07:42 federal government. Is this one of those cases
00:07:42 --> 00:07:45 where the stakes are so small because the arguments
00:07:45 --> 00:07:48 are so big? Yeah. That's a good way to describe
00:07:48 --> 00:07:51 it. Okay. So let's dig into the criticisms. So
00:07:51 --> 00:07:53 we're going to organize this around three big
00:07:53 --> 00:07:56 themes. First, the court rewrote history. We
00:07:56 --> 00:07:58 talked about that a little. Second, that the
00:07:58 --> 00:08:00 court misunderstands how modern governance works.
00:08:01 --> 00:08:03 And third, that the practical consequences are
00:08:03 --> 00:08:06 already causing chaos. So, first part of this,
00:08:06 --> 00:08:09 how the court rewrote history. Loperbright describes
00:08:09 --> 00:08:12 Chevron as some kind of bizarre 1980s deviation
00:08:12 --> 00:08:15 from what the court had always done. The majority
00:08:15 --> 00:08:17 says the APA requires courts to decide questions
00:08:17 --> 00:08:20 of law independently, and Chevron violated that.
00:08:20 --> 00:08:23 But we covered this in the Chevron episode. Courts
00:08:23 --> 00:08:25 were deferring to agencies long before 1984.
00:08:26 --> 00:08:29 Yes, exactly. This was like United States v.
00:08:29 --> 00:08:32 Hammers from 1911, where the court said agency
00:08:32 --> 00:08:35 interpretations were in the highest degree persuasive,
00:08:35 --> 00:08:37 if not controlling. Or Ford Motor Credit from
00:08:37 --> 00:08:40 1980, just four years before Chevron, where the
00:08:40 --> 00:08:42 court said deference to the Federal Reserve was
00:08:42 --> 00:08:45 compelled by necessity. And Yakis in 1944, right
00:08:45 --> 00:08:48 before the APA was passed. Yes. In Yakis, the
00:08:48 --> 00:08:50 court said, and we also quoted this in the earlier
00:08:50 --> 00:08:53 episode, that the Constitution has never been
00:08:53 --> 00:08:55 regarded as denying to the Congress the necessary
00:08:55 --> 00:08:58 resources of flexibility and practicality to
00:08:58 --> 00:09:01 perform its function. The court was extremely
00:09:01 --> 00:09:03 deferential to agencies that had been given rulemaking
00:09:03 --> 00:09:06 authority. So Chevron wasn't inventing anything
00:09:06 --> 00:09:09 new. It absolutely was not. It was formalizing
00:09:09 --> 00:09:12 what courts had been doing for decades. The two
00:09:12 --> 00:09:14 -step test really just made crystal clear and
00:09:14 --> 00:09:16 predictable what the courts were already doing.
00:09:16 --> 00:09:18 That underlying principle, that agencies with
00:09:18 --> 00:09:21 expertise and delegated authority deserve respect
00:09:21 --> 00:09:24 when interpreting the ambiguous statutes, I realize
00:09:24 --> 00:09:26 that we're getting to kind of a broken record
00:09:26 --> 00:09:29 here. But here's a case excerpt from United States
00:09:29 --> 00:09:33 v. Moore. It's from 77, and it, again, talks
00:09:33 --> 00:09:35 about the kind of deference that predated Chevron.
00:09:37 --> 00:09:38 In that case, the court said the construction
00:09:38 --> 00:09:41 given to a statute by those charged with the
00:09:41 --> 00:09:43 duty of executing it is always entitled to the
00:09:43 --> 00:09:46 most respectful consideration and ought not be
00:09:46 --> 00:09:49 overruled without cogent reasons, though officers
00:09:49 --> 00:09:52 concerned are usually able men and masters of
00:09:52 --> 00:09:55 the subject. All right. That dated language makes
00:09:55 --> 00:09:58 more sense when I tell you that this is an 1877
00:09:58 --> 00:10:02 opinion. So to repeat. Courts were giving deference
00:10:02 --> 00:10:04 to agency interpretations of the statutes they
00:10:04 --> 00:10:07 were executing because they were experts in that
00:10:07 --> 00:10:11 area in 1877. The talk that says Chevron changed
00:10:11 --> 00:10:13 everything is like someone saying, in my day,
00:10:13 --> 00:10:16 we didn't defer to agencies, except that you
00:10:16 --> 00:10:20 actually did all the time. OK, but what's the
00:10:20 --> 00:10:23 second criticism? The second issue is that the
00:10:23 --> 00:10:26 court fundamentally misunderstands how modern
00:10:26 --> 00:10:29 government works. Congress has to write statutes
00:10:29 --> 00:10:32 with flexible terms. Reasonable, feasible, appropriate,
00:10:32 --> 00:10:35 adequate. We talked about this in the delegation
00:10:35 --> 00:10:38 episode where Congress can't possibly specify
00:10:38 --> 00:10:40 every single thing. That's why courts require
00:10:40 --> 00:10:43 an intelligible principle, but not a detailed
00:10:43 --> 00:10:45 set of instructions to mindlessly put in place.
00:10:45 --> 00:10:48 Right. And that's not a flaw. That's a feature
00:10:48 --> 00:10:50 of the process. The world is way too complex
00:10:50 --> 00:10:52 and changing too fast for Congress to anticipate
00:10:52 --> 00:10:55 every possible application of every statute.
00:10:55 --> 00:10:58 So Congress delegates. And agencies use scientists,
00:10:59 --> 00:11:02 engineers, economists, medical experts, risk
00:11:02 --> 00:11:05 analysis, real world data to try and figure out
00:11:05 --> 00:11:07 what these things should mean in specific contexts.
00:11:07 --> 00:11:10 Judges are smart, but they're generalists. They
00:11:10 --> 00:11:13 could see a fishery case, tax case, environmental
00:11:13 --> 00:11:16 case, labor case all in the same week. They don't
00:11:16 --> 00:11:18 have the deep expertise that comes from working
00:11:18 --> 00:11:21 on these issues every single day for years. And
00:11:21 --> 00:11:23 so Loper Bright acknowledges this, right? I mean,
00:11:23 --> 00:11:25 Robert says the courts can still consider agency
00:11:25 --> 00:11:29 expertise. He says that careful attention to
00:11:29 --> 00:11:31 the judgment of the executive branch may help
00:11:31 --> 00:11:33 inform the court's inquiry, but may help inform
00:11:33 --> 00:11:36 is very different from defer to reasonable interpretations.
00:11:37 --> 00:11:39 Under Chevron, if the agency did the work and
00:11:39 --> 00:11:42 reached a reasonable conclusion, that was enough.
00:11:42 --> 00:11:45 Under Loper Bright, the court will decide independently
00:11:45 --> 00:11:48 for itself what the statute means, and the agency's
00:11:48 --> 00:11:51 views are just one input among many. What's actually
00:11:51 --> 00:11:54 then happening in the courts? Chaos. Let's talk
00:11:54 --> 00:11:58 about a few different areas of law. This is where
00:11:58 --> 00:12:00 those flip -flop examples come in. Yeah, partly.
00:12:00 --> 00:12:02 So remember that the argument for Loper Bright
00:12:02 --> 00:12:05 was that Chevron enabled flip -flopping. Agencies
00:12:05 --> 00:12:07 were changing interpretations each time a new
00:12:07 --> 00:12:10 presidential administration came in. As the parties
00:12:10 --> 00:12:13 changed, the interpretations changed. Net neutrality
00:12:13 --> 00:12:15 was a telecommunications service, then an information
00:12:15 --> 00:12:18 service, then a telecommunications service again.
00:12:18 --> 00:12:21 The joint employer test kept changing. The definition
00:12:21 --> 00:12:23 of waters of the United States under the Clean
00:12:23 --> 00:12:26 Water Act. first covered temporary streams, then
00:12:26 --> 00:12:29 it didn't, then it did again. So generally a
00:12:29 --> 00:12:32 destabilizing set of circumstances. Yes, it was.
00:12:32 --> 00:12:35 But what Loper Bright's critics are pointing
00:12:35 --> 00:12:38 out now is that instead of agency flip -flops
00:12:38 --> 00:12:41 in response to political changes, we have judicial
00:12:41 --> 00:12:44 fragmentation. Different circuits govern different
00:12:44 --> 00:12:46 parts of the country, and different circuits
00:12:46 --> 00:12:48 are reaching different conclusions about what
00:12:48 --> 00:12:51 statutes mean. And unlike agency interpretations,
00:12:51 --> 00:12:54 which at least apply to the entire country, these
00:12:54 --> 00:12:56 can be fragmented across the country at the same
00:12:56 --> 00:12:58 time. So instead, the rules changing every four
00:12:58 --> 00:13:00 to eight years with new administrations? They
00:13:00 --> 00:13:03 change depending on what circuit you're in. A
00:13:03 --> 00:13:05 company operating in the Fifth Circuit might
00:13:05 --> 00:13:07 face different legal requirements from a company
00:13:07 --> 00:13:09 in the Ninth Circuit, even though they're subject
00:13:09 --> 00:13:12 to the same federal statute, because Loeb or
00:13:12 --> 00:13:15 Bright gave the courts an excuse to totally disregard
00:13:15 --> 00:13:17 what the agency was doing. That seems much worse,
00:13:17 --> 00:13:21 not better. I would say here's what the Second
00:13:21 --> 00:13:23 Circuit said about deference just months after
00:13:23 --> 00:13:26 Loper Bright. Deference is now a relic of the
00:13:26 --> 00:13:30 past. A relic of the past. In that case, they
00:13:30 --> 00:13:32 were interpreting the definition of particularly
00:13:32 --> 00:13:35 serious crime for deportation purposes. These
00:13:35 --> 00:13:37 are life -altering determinations, whether someone
00:13:37 --> 00:13:39 gets to stay in the country. And courts are now
00:13:39 --> 00:13:41 saying that they'll decide what the statutory
00:13:41 --> 00:13:44 terms mean with no deference to the agency that
00:13:44 --> 00:13:46 handles thousands of these cases. What about
00:13:46 --> 00:13:49 the other areas? In labor law, the Fifth Circuit
00:13:49 --> 00:13:50 struck down the Department of Labor's tipped
00:13:50 --> 00:13:54 wage rule. This was the 80 -20 rule about how
00:13:54 --> 00:13:56 much time tipped employers could spend on non
00:13:56 --> 00:13:58 -tipped duties. And they did this explicitly
00:13:58 --> 00:14:01 using... low per bright. We can see this in environmental
00:14:01 --> 00:14:04 area, in energy regulations. The Sixth Circuit
00:14:04 --> 00:14:07 just struck down the FCC's net neutrality rules.
00:14:07 --> 00:14:11 The flip -flopping hasn't stopped. It's really
00:14:11 --> 00:14:14 just gotten more chaotic. At least under Chevron,
00:14:14 --> 00:14:15 we were likely to have a national interpretation.
00:14:16 --> 00:14:19 Now, different circuits are arriving at the one
00:14:19 --> 00:14:22 true meaning of the statute and coming out in
00:14:22 --> 00:14:24 different places. And here's what I keep thinking
00:14:24 --> 00:14:27 about. Judges don't just interpret statutes in
00:14:27 --> 00:14:29 the abstract. They're deciding real cases with
00:14:29 --> 00:14:32 real consequences. Yes. And when a court strikes
00:14:32 --> 00:14:35 down an EPA rule on particulate matter, that
00:14:35 --> 00:14:37 affects the air quality for millions of people.
00:14:37 --> 00:14:40 If a court reinterprets OSHA's authority over
00:14:40 --> 00:14:42 workplace safety, that affects whether workers
00:14:42 --> 00:14:45 are protected from hazards. These aren't academic
00:14:45 --> 00:14:48 exercises. So let's make this concrete. How does
00:14:48 --> 00:14:50 Looper Bright affect ordinary people's lives?
00:14:51 --> 00:14:53 Here's an example that could be a little more
00:14:53 --> 00:14:57 relatable. We've talked about how the Food, Drug
00:14:57 --> 00:14:59 and Cosmetic Act requires food labels to be truthful
00:14:59 --> 00:15:02 and not misleading. Congress said that the FDA
00:15:02 --> 00:15:05 is authorized to regulate health claims. These
00:15:05 --> 00:15:06 are statements that describe the relationship
00:15:06 --> 00:15:09 between a food substance and disease risk. Like
00:15:09 --> 00:15:12 may reduce the risk of heart disease. Yes, or
00:15:12 --> 00:15:14 supports a healthy immune system or even low
00:15:14 --> 00:15:17 fat. But here's the problem. Congress never defined
00:15:17 --> 00:15:20 what makes a claim false or misleading in this
00:15:20 --> 00:15:23 context. What level of scientific evidence do
00:15:23 --> 00:15:25 we need before a company can claim that their
00:15:25 --> 00:15:27 cereal reduces heart disease? Can you call something
00:15:27 --> 00:15:30 low fat if it has three grams of fat per serving?
00:15:30 --> 00:15:33 Two grams? Five? So those seem like questions
00:15:33 --> 00:15:36 that need specific answers. They do. And FDA
00:15:36 --> 00:15:39 had been providing those answers for decades.
00:15:39 --> 00:15:42 They've developed detailed rules about what scientific
00:15:42 --> 00:15:44 evidence you need for different types of health
00:15:44 --> 00:15:46 claims. They've defined exactly what low fat
00:15:46 --> 00:15:49 and reduced sodium and good source of fiber mean.
00:15:49 --> 00:15:51 Under Chevron, courts would defer to FDA's interpretation
00:15:51 --> 00:15:54 of misleading when the agency required, say,
00:15:54 --> 00:15:57 significant scientific agreement before a company
00:15:57 --> 00:16:00 could make a disease risk claim. And now? All
00:16:00 --> 00:16:02 right. Well, imagine we've got a company that
00:16:02 --> 00:16:03 wants their product to, say, prevents dementia.
00:16:04 --> 00:16:06 The FDA says, no, there's no science actually
00:16:06 --> 00:16:09 backing that up. That claim is misleading. But
00:16:09 --> 00:16:12 the company sues, and under Loeb or Bright, the
00:16:12 --> 00:16:14 court has no need to defer to FDA's scientific
00:16:14 --> 00:16:16 judgment about what could make a health claim
00:16:16 --> 00:16:18 misleading. The court would decide independently
00:16:18 --> 00:16:21 what Congress meant by false or misleading. So
00:16:21 --> 00:16:23 a federal judge with no background in clinical
00:16:23 --> 00:16:26 research or nutrition science is now deciding
00:16:26 --> 00:16:28 what level of evidence makes a health claim misleading
00:16:28 --> 00:16:31 versus truthful. Yes. A judge in the Fifth Circuit
00:16:31 --> 00:16:34 might think misleading only covers outright lies.
00:16:34 --> 00:16:36 If there's any study supporting a claim, it's
00:16:36 --> 00:16:38 not misleading. A judge in the Ninth Circuit
00:16:38 --> 00:16:41 might think misleading includes claims that cherry
00:16:41 --> 00:16:44 -pick weak evidence. Suddenly, the legal standard
00:16:44 --> 00:16:46 for food labeling depends on where you live.
00:16:48 --> 00:16:51 prevents cancer claim gets rejected in California
00:16:51 --> 00:16:54 could try again in Texas. They could, and they
00:16:54 --> 00:16:56 could be legally selling the product in Texas
00:16:56 --> 00:16:59 and not in California under whatever the relevant
00:16:59 --> 00:17:01 regulation was that theoretically applies uniformly
00:17:01 --> 00:17:04 across the country. So this means that forum
00:17:04 --> 00:17:08 shopping is a real strategy. And the flip -flopping
00:17:08 --> 00:17:11 babysitter problem was real. FDA has changed
00:17:11 --> 00:17:13 its position on various labeling questions over
00:17:13 --> 00:17:15 the years. But again, when they did that, they
00:17:15 --> 00:17:18 were doing it on a national basis. Everyone selling
00:17:18 --> 00:17:20 food followed the same FDA interpretation of
00:17:20 --> 00:17:24 what misleading means. Now we can have a dozen
00:17:24 --> 00:17:26 different circuit court interpretations, each
00:17:26 --> 00:17:28 claiming to be the one true correct reading of
00:17:28 --> 00:17:31 what Congress meant. Loper Bright said each statute
00:17:31 --> 00:17:35 has one single best meaning. Yes, it did. And
00:17:35 --> 00:17:37 that's going to be true in practice if... Only
00:17:37 --> 00:17:40 one court ever interprets it. When you have hundreds
00:17:40 --> 00:17:43 of judges in a dozen circuits, each exercising
00:17:43 --> 00:17:45 independent judgment, you're going to get different
00:17:45 --> 00:17:48 answers. And unlike when agencies flip -flop,
00:17:48 --> 00:17:51 there's no mechanism for quick correction. It
00:17:51 --> 00:17:52 takes years to get circuit splits resolved by
00:17:52 --> 00:17:54 the Supreme Court if they even ever take it.
00:17:54 --> 00:17:57 Meanwhile, consumers don't know which health
00:17:57 --> 00:18:00 claims to trust. And companies don't know what
00:18:00 --> 00:18:02 they're allowed to say. The whole point of having
00:18:02 --> 00:18:04 FDA interpret these terms was predictability
00:18:04 --> 00:18:07 and expertise. Now we're trading agency flip
00:18:07 --> 00:18:09 -flopping for judicial fragmentation. So now
00:18:09 --> 00:18:12 my cereal box is going to say prevents heart
00:18:12 --> 00:18:16 disease, maybe. It could say prevents heart disease
00:18:16 --> 00:18:19 here in Oklahoma and something totally different
00:18:19 --> 00:18:21 if you cross the line into Kansas. Are there
00:18:21 --> 00:18:24 other areas like this? Same thing for drug approvals
00:18:24 --> 00:18:26 in the FDA. What does safe and effective mean
00:18:26 --> 00:18:29 for a new medication? This is going to apply
00:18:29 --> 00:18:30 in workplace safety, what counts as a recognized
00:18:30 --> 00:18:33 hazard. Environmental protection, what's the
00:18:33 --> 00:18:36 best available technology for controlling pollution.
00:18:36 --> 00:18:39 We could go on and on. And all of that is now
00:18:39 --> 00:18:41 subject to independent judicial interpretation.
00:18:42 --> 00:18:44 Yes, with courts that have a fraction of the
00:18:44 --> 00:18:47 agency's expertise and resources. There's another
00:18:47 --> 00:18:50 dimension to this, isn't there? What about who
00:18:50 --> 00:18:53 makes policy in a democracy? Yes. This is something
00:18:53 --> 00:18:55 that Justice Kagan emphasized in her dissent.
00:18:55 --> 00:18:58 When an agency interpreted an ambiguous statute,
00:18:58 --> 00:19:01 that interpretation was connected to the president.
00:19:01 --> 00:19:03 The president appointed the agency heads. If
00:19:03 --> 00:19:06 you didn't like the EPA's interpretation, elect
00:19:06 --> 00:19:08 a new president. Those kinds of changes were
00:19:08 --> 00:19:10 why we had those problematic flip -flops. So
00:19:10 --> 00:19:12 agency interpretations were accountable to the
00:19:12 --> 00:19:15 voters in a sense. Yes, they were, at least to
00:19:15 --> 00:19:17 some extent. In contrast, judges have life tenure.
00:19:18 --> 00:19:20 They are not accountable to anyone. When a court
00:19:20 --> 00:19:22 decides what waters of the United States means,
00:19:22 --> 00:19:25 the only recourse would be for Congress to pass
00:19:25 --> 00:19:28 a new, clearer statute. And we know how hard
00:19:28 --> 00:19:31 it is for Congress to pass anything. Yes, they're
00:19:31 --> 00:19:33 absolutely gridlocked. They can barely pass a
00:19:33 --> 00:19:35 budget, let alone detailed technical legislation
00:19:35 --> 00:19:39 specifying what every statutory term means. By
00:19:39 --> 00:19:41 eliminating Chevron, the court shifted enormous
00:19:41 --> 00:19:44 power from the elected branches to the judiciary.
00:19:44 --> 00:19:47 It seems rather ironic, actually. The court said
00:19:47 --> 00:19:50 Chevron gave too much power to agencies, unelected
00:19:50 --> 00:19:52 bureaucrats making the law, but now judges are
00:19:52 --> 00:19:56 also unelected, are making these decisions. Yes.
00:19:56 --> 00:19:58 The difference was that the agency had at least
00:19:58 --> 00:20:00 served at the pleasure of the president, who
00:20:00 --> 00:20:03 was elected, and judges served for life. So this
00:20:03 --> 00:20:06 makes it significantly less democratically accountable.
00:20:07 --> 00:20:09 So the grandparents who never have to face the
00:20:09 --> 00:20:12 voters. Yes. And who can override the babysitter
00:20:12 --> 00:20:15 whenever they want, even though the babysitter
00:20:15 --> 00:20:17 is the one who's actually accountable to the
00:20:17 --> 00:20:21 parents. OK, so Chevron is gone. After 40 years,
00:20:21 --> 00:20:23 courts no longer defer to agency interpretations,
00:20:24 --> 00:20:27 which is a massive shift on its own. It is. But
00:20:27 --> 00:20:30 here's the thing. Loeb for Bright isn't the only
00:20:30 --> 00:20:32 major administrative law decision from that term.
00:20:33 --> 00:20:35 And next episode, we're going to talk about a
00:20:35 --> 00:20:37 case that might be even more destabilizing. Even
00:20:37 --> 00:20:39 more destabilizing than killing Chevron. At the
00:20:39 --> 00:20:42 time, it seemed almost inconceivable, which now
00:20:42 --> 00:20:45 seems quaint. But this is Corner Post Reborder
00:20:45 --> 00:20:48 Governors. It's about the statute of limitations
00:20:48 --> 00:20:51 and when you can challenge a regulation. In this
00:20:51 --> 00:20:53 case, the Supreme Court said the clock doesn't
00:20:53 --> 00:20:55 start until you are personally injured by the
00:20:55 --> 00:20:57 rule, which means regulations that have been
00:20:57 --> 00:20:59 on the books for decades are open to challenge
00:20:59 --> 00:21:02 by anyone who wasn't around when they were issued.
00:21:02 --> 00:21:05 So Loperbright says courts don't defer to agencies
00:21:05 --> 00:21:08 and Corner Post says you can challenge regulations
00:21:08 --> 00:21:10 forever. Yes. Now you can see why I'm saying
00:21:10 --> 00:21:13 this is probably even more destabilizing. By
00:21:13 --> 00:21:15 adding these two together, you're really multiplying
00:21:15 --> 00:21:17 the problems. Every old regulation is vulnerable
00:21:17 --> 00:21:20 to a fresh challenge. And when those challenges
00:21:20 --> 00:21:22 occur, they're going to be decided by judges
00:21:22 --> 00:21:24 who no longer defer to the agency that wrote
00:21:24 --> 00:21:26 the regulation. That sounds like chaos on top
00:21:26 --> 00:21:29 of chaos. It does. One of the dissenting judges
00:21:29 --> 00:21:31 said we're going to be entering a regulatory
00:21:31 --> 00:21:34 Wild West. Next time, we'll dig into exactly
00:21:34 --> 00:21:37 how that works and what it means. And that's
00:21:37 --> 00:21:40 our season finale. Yes, it will be. Corner Post
00:21:40 --> 00:21:42 is going to be the last episode of Season 1.
00:21:42 --> 00:21:44 We'll wrap up by looking at where administrative
00:21:44 --> 00:21:47 law stands after this term, with Chevron gone,
00:21:47 --> 00:21:50 time limits gone, and what that's going to mean
00:21:50 --> 00:21:52 for the regulatory state going forward. I'm looking
00:21:52 --> 00:21:55 forward to learning more about Corner Post. Until
00:21:55 --> 00:21:57 then, I'm Mark Rourke. And I'm Brent Savitz.
00:21:57 --> 00:21:59 We will see you next time for the season finale.
00:22:03 --> 00:22:05 So that does it for today's episode on Administrative
00:22:05 --> 00:22:08 Remedies. Thank you for joining us today. Please,
00:22:08 --> 00:22:10 if you enjoy this podcast and enjoy this episode,
00:22:11 --> 00:22:14 give us a like on Spotify, iTunes, or whatever
00:22:14 --> 00:22:17 platform you're listening on. And be sure to
00:22:17 --> 00:22:19 tune in next time where we'll continue to dive
00:22:19 --> 00:22:21 into the contours of administrative law. Because
00:22:21 --> 00:22:24 remember, you can't fix what you don't understand.