S1E12 Transcript — The Chevron Doctrine

Gwen: Hello, and welcome to Administrative Remedies, because you can’t fix what you don’t understand. Brought to you in part by the University of Tulsa College of Law. I’m Gwendolyn Savitz, an associate professor here at TU and the associate dean of research and intellectual life.

Marc: And I’m Marc Roark. I’m the dean of the College of Law.

Gwen: We’ll be breaking down complex doctrines with real-life analogies and examples to demystify the world of administrative law for everyone trying to understand how government actually works.

Marc: Agencies are the main way the federal government gets things done. It’s not through Congress for reasons we’ll be addressing over the course of this series.

Gwen: We’ve spent the last two episodes exploring the Major Questions Doctrine, when Congress has to speak super, super clearly to issues of vast economic and political significance. Today, we’re turning to another doctrine that controlled how administrative law functioned for decades, and that is Chevron.

Gwen: So, Marc, we’re going to go back to the babysitter. Except now we’re going to make her a nanny. We’ll call her Crystal. She’s been with this family for two years. She does the school pickup, homework, dinner, the whole routine.

Marc: Okay. So she knows how our life works and she knows how the kids work.

Gwen: Yes. She also knows that homework needs to happen before screens or everything goes downhill. The kids have sloppy handwriting. They’re rushing through it. They don’t retain anything. So it’s 6:45. The kids’ favorite show is on at 7. And Crystal’s told the kid that homework needs to get done first or the kid can’t watch. The kid does not like this, calls up Grandma at 6:55 and says, Crystal’s making up rules. Mom and Dad didn’t say when I had to do homework. They just said my homework has to get done.

Marc: What does Grandma do then?

Gwen: This we could think of as a Chevron situation. So the instructions are vague if the parents just want to make sure the homework is done. Crystal has expertise. She knows the kid. She knows the family. Under Chevron, Grandma would defer to Crystal’s reasonable interpretation, meaning the kid has to do the homework before they can watch TV, even if the Grandma might have let the kid do it afterwards.

Marc: And that’s what courts did with agencies.

Gwen: Yes. For 40 years, if Congress left something unclear, and as we’ve talked about, Congress can leave a lot of things unclear, courts deferred to the agency’s reasonable expert judgments.

Marc: In this example, Crystal obviously is the agency, but we needed to bring in the grandparents. We couldn’t just have the parents coming back because the whole point is that the person making this decision about what the delegator meant, what Congress meant, isn’t Congress.

Gwen: So we need to have a third party in there.

Marc: So this is about who gets to fill in the blanks when Congress is being vague.

Gwen: Yes. And Congress is vague all the time, sometimes because they can’t agree on stuff. But also because they can’t predict every situation that a particular agency would face.

Marc: Right. Like we talked about the Clean Air Act before, how Congress wants the EPA to regulate air pollutants, but doesn’t necessarily know what a pollutant should be. Like carbon dioxide, does that count?

Gwen: Yeah. I mean, we breathe it out, but is that pollution? But what level of danger and what kinds of danger should the agency have to act on? One death per million, per billion? And they didn’t specify. They can’t for so many of these areas. Environmental statutes, workplace regulations, food safety. These statutes are full of terms like reasonable, feasible, appropriate, harmful, fair. And someone has to put numbers to give meaning to those words.

Marc: Yes. So the question is, who should be the one doing that? The agency that works with that kind of issue every day or judges who only see that issue occasionally?

Gwen: And agencies that have more expertise with this area do more practice with it, probably are in a better position to decide what those numbers should be.

Marc: That’s what the Supreme Court said for decades. But to understand why this is such a big deal, let’s talk about the actual case itself.

Gwen: If we’re thinking about Chevron, this is 1984, Reagan’s president. His EPA is trying to help the industry while still complying with the Clean Air Act.

Marc: Reagan’s EPA is helping the industry? That’s shocking.

Gwen: I know. So everything comes down to one word in the Clean Air Act, and that is “source.”

Marc: Source of what?

Gwen: Source of pollution. So the Clean Air Act said that areas with dirty air, which are called non-attainment areas, in those types of areas, any new or modified stationary source of pollution needs a permit. And getting that permit meant you had to install the best available technology.

Marc: Let me guess, that’s going to cost a lot of money.

Gwen: Millions of dollars per smokestack. But here was the important question. What counts as a source? Is it every individual smokestack?

Marc: Well, that would make sense because each one would then emit pollution.

Gwen: Or is the entire factory one source?

Marc: Oh, OK. I can see that.

Gwen: So Reagan’s EPA came up with the bubble concept. We can picture a giant imaginary bubble over the entire industrial plant.

Marc: Like a dome.

Gwen: Yes. And everything inside that bubble or under the dome. All the smokestacks, the vents, every emission point there, that is one single source. So if you have a factory with 10 smokestacks and you want to modify smokestack number three to increase production.

Marc: Which would increase the emissions from that stack.

Gwen: Yes. So under this individual approach, you need a permit and expensive controls on smokestack three. But under the bubble concept, you would look at all of the different smokestacks combined and there might be something you could do to reduce emission at another smokestack. Maybe you’re shutting it down or maybe it’s doing something where you can put cheaper control technology on that one. So you have a total cap of what you can do. And sometimes that means you can modify the different things you have at your control.

Marc: Right. So you can’t be emitting more pollution total from that factory, but you could adjust what you’re doing to try and even that emission out.

Gwen: Okay. And then you wouldn’t have to have a permit.

Marc: Right. You wouldn’t need to go through the expensive permit process and you wouldn’t need to go through the expensive technology to improve the emissions for that one particular smokestack.

Gwen: It does seem a little bit like playing fast and loose with what the rules are governing industrial complexes.

Marc: That is what the Natural Resources Defense Council said, too. They sued saying that the whole point in these non-attainment areas was to reduce the pollution whenever possible. And if you let companies just shuffle pollution around under an imaginary bubble, that would defeat the purpose.

Gwen: What did the statute actually say, though, about the source?

Marc: It just defined stationary source as any building, structure, facility, or installation which emits or may emit any air pollutant.

Gwen: Those are all different scales of emission, right? So a building is smaller than a facility.

Marc: Yeah. So a building could mean one structure. A facility could mean the whole complex. An installation could mean a single piece of equipment or potentially the entire industrial installation.

Gwen: So essentially both sides could claim they were right in how they were interpreting the statute.

Marc: Yes. Both sides were absolutely convinced that the plain language of the statute supported them.

Gwen: The case goes to the Supreme Court and Stevens writes an opinion that creates what becomes the Chevron two-step.

Marc: Sounds like a dance.

Gwen: It does. A little easier than the Macarena. So this one just has two moves. Step one, has Congress directly spoken to the precise question at issue?

Marc: Meaning, is it crystal clear on what source means within the statute?

Gwen: Yes, that would be what they’re looking at here. At this stage, courts are really supposed to try. They’re using all traditional tools of statutory interpretation. They’re looking at the text. What do the words mean? They’re looking at the structure. How does this provision fit in with other provisions? They’re looking at the purpose. What was Congress trying to achieve with this?

Marc: So judges can’t just glance at it, throw their hands up and say, it looks confusing to me.

Gwen: Exactly. They need to genuinely exhaust every traditional tool of statutory interpretation. But sometimes after all that work, the statute is still genuinely ambiguous.

Marc: Like stationary source, like we have here.

Gwen: Yes, exactly. This is definitely an ambiguous statute under that standard. So when that happens, we go to step two. If the statute is ambiguous, did the agency adopt a reasonable interpretation?

Marc: Reasonable according to who?

Gwen: So that was the key with the test. Reasonable didn’t mean the best interpretation. It didn’t mean the interpretation the judge would choose if they were choosing fresh. Or the one that the judge thought best served the statutory purpose. It just had to be reasonable.

Marc: That’s a pretty low bar.

Gwen: Yes. The agency didn’t need to be right in the judge’s mind, just reasonable. And that could be within a fairly broad area. If it was reasonable, the agency wins.

Marc: Even if the judge hates the outcome.

Gwen: Even if the judge thinks it’s terrible policy. Even if the judge thinks there’s potentially a better interpretation. The reasonable agency interpretation beats whatever the judicial preference is.

Marc: So in Chevron itself, then?

Gwen: We say step one, is stationary source clear? No. As we’ve established, it could mean an individual smokestack or it could mean the entire plant. So step two, is the EPA’s bubble concept reasonable? And the court says yes. Focusing on total plant emissions is a reasonable approach. Again, the EPA can be choosing to allow businesses to control whatever is cheapest for them to control while still making sure that we’re not increasing the total emissions from the facility.

Marc: Wait a minute. In this case, then the environmental groups lost under Chevron.

Gwen: Yes, they did. EPA won. EPA’s approach was against what the environmental groups wanted there, so they lost.

Marc: I thought Chevron, though, was about agencies doing more regulation.

Gwen: In this case, deference meant less environmental protection. Reagan’s business-friendly EPA won. But it’s what happened next that mattered.

Marc: Let me guess. The tables turned with a new administration.

Gwen: Shockingly, they did. So when Clinton came in, his EPA issued much stricter environmental rules. Industry challenged them. When that happened, the EPA would cite Chevron and say our reasonable interpretation should win.

Marc: It became a double-edged sword.

Gwen: Yes, every administration found Chevron useful when they were defending their policies because, as we’ve established, there’s a lot of ambiguity in most statutes.

Marc: Okay, but how does this actually affect regular people? This seems pretty abstract.

Gwen: Let’s look at a concrete example. Organic food. Congress tells the USDA to create standards for organic labeling, but the statute just says products should be produced without synthetic chemicals and using methods that foster cycling of resources.

Marc: Foster cycling of resources. What does that even mean?

Gwen: Exactly. So the USDA has to get specific. What percentage of organic ingredients will make a product organic?

Marc: I don’t know. 51%?

Gwen: USDA said 95%.

Marc: Okay. That’s a very specific number.

Gwen: It is. Someone had to pick it. So they said at 95%, you can say you’re organic. At 70%, you can say “made with organic ingredients.” They also decided things like organic cows will need access to pasture 120 days a year.

Marc: Why 120, not 100, not 150?

Gwen: They’re trying to interpret “fostering cycling of resources.” It’s going to be a lot easier in some parts of the country to keep cows out for a lot longer than other parts of the country.

Marc: Okay. This is really deferring to the people who have expertise on the ground to say what these vague words might mean within their industry.

Gwen: Is there another example?

Marc: Net neutrality. Whether internet providers are going to be considered information services or telecommunication services.

Gwen: OK, I know this fight and it keeps changing.

Marc: Yeah. Under Obama, they’re regulated as telecommunication services and that means heavy regulation. Trump comes in. They’re now an information service. Hands off. Biden comes back in, back to telecommunications.

Gwen: It seems very chaotic. The rules change every four years.

Marc: This constant flip-flopping. This was one of the major criticisms people had about Chevron, that we would defer to whatever the agency interpretation was and the agency interpretation could change.

Gwen: Was it really that big of a change in 1984?

Marc: This is what is so important and what most people don’t really understand. Courts were doing this long before Chevron.

Gwen: Let’s talk about United States v. Hammers. This is from 1911. It’s a perjury case, and the entire prosecution hinges on whether the Desert Land Act allows someone to assign a land entry. Here’s the part where the court discusses what the district court said about agency deference.

Marc: It was also conceded that the rule often authoritatively announced is that where a court is doubtful about the meaning of an act of Congress, the construction placed upon the act by the department charged with its enforcement is in the highest degree persuasive, if not controlling.

Gwen: And then the court said—

Marc: Such decision, however, it was said, only determined in cases of doubt. And as the court found no ambiguity in the act, decided against the ruling of the department and the contention of the government.

Gwen: Here, the district court said, if I had doubt, I’d defer. But I don’t, so I’m not going to. And the Supreme Court didn’t buy that.

Marc: We do not find the Act of 1891 as clear as the learned district court did, and must give to decisions of the Land Department the weight to which, in such case, the court acknowledged they are entitled.

Gwen: There it is. Once we determine there’s some ambiguity, the agency’s longstanding interpretation carries weight, so they deferred to the agency.

Gwen: Here’s another one from 1980. This is just four years before Chevron. It’s Ford Motor Credit v. Milhollin. Here the court deferred to the Federal Reserve Board’s longstanding interpretation that lenders didn’t need to disclose acceleration clauses on the face of consumer credit contracts.

Marc: Deference to the Federal Reserve is compelled by necessity.

Gwen: Compelled by necessity.

Marc: A court that tries to chart a true course to the act’s purpose embarks upon a voyage without a compass when it disregards the agency’s views.

Gwen: That’s rather poetic.

Marc: It is. Keep going.

Marc: Striking the appropriate balance is an empirical process that entails investigation into consumer psychology and presupposes broad experience with credit practices. Administrative agencies are simply better suited than courts to engage in such a process.

Marc: Simply better suited? They’re just saying agencies are better than us.

Gwen: Yes, this was decades of deferring to agencies.

Marc: Okay, so if this was so established, why was Chevron special?

Gwen: Part of it is that at the time Chevron was issued, it wasn’t special. This was not a big case. It wasn’t viewed as such when it came out. And one way we can tell that is that the very day Chevron was decided, June 25th, 1984, they decided another case using traditional agency deference and didn’t even mention Chevron.

Marc: The same day?

Gwen: Yes, the exact same day. This was Sure-Tan v. NLRB. And here the question is whether undocumented immigrants count as employees under labor law.

Marc: Oh, that’s quite controversial.

Gwen: Yeah, it has huge implications. All the statute says is “employee means any employee.”

Marc: And that’s not really all that helpful.

Gwen: It’s not. Circular definitions generally aren’t. The NLRB said undocumented workers are covered. The employer said they’re not really employees, and the court deferred to the NLRB. But here’s their reasoning. Can you read this part?

Marc: Since the task of defining the term “employee” is one that has been assigned primarily to the agency created by Congress to administer the Act—

Gwen: So assigned to the agency here.

Marc: The Board’s construction of that term is entitled to considerable deference, and we will uphold any interpretation that is reasonably defensible.

Gwen: “Reasonably defensible”—that’s basically Chevron.

Marc: It is, but they’re citing a 1944 case, not Chevron, which they decided the very same day.

Gwen: Did the justices not talk to each other?

Marc: These were written by different people. It’s the same principle, we’re going to defer to the agency, comes out on the exact same day. It’s safe to assume that if the court viewed Chevron as a new test and a change in the way they were interpreting agency law, they would have used the opportunity to apply it to another case that they were issuing the exact same day on agency deference.

Gwen: That’s actually pretty funny. It shows Chevron wasn’t revolutionary. It was just one way of expressing what courts had always done.

Marc: Why did then Chevron become the standard?

Gwen: Mostly because this two-step test was crystal clear. This was a longstanding thing that the court had been doing for a long time, but it was also being expressed in a lot of different ways. Plus, this was ideologically neutral. Reagan’s EPA used it for deregulation. Clinton’s EPA used it for stricter rules. Everyone found it useful sometimes.

Marc: A truly actual bipartisan doctrine.

Gwen: Yes. And it was at the court, too. This was a unanimous decision, which Sure-Tan was not, although there were kind of different groups that were voting in them. This was seen as just straightforward, neutral administrative law, not politics.

Marc: So deference is the court accepting an agency’s interpretation, even if they might have chosen differently. It’s not blind acceptance. It’s just respect for the expertise and institutional role of the agency.

Gwen: The court really does have to work at step one before moving on to step two. It’s traditional tools of statutory interpretation. These are the methods courts use for every other case to try and determine statutory meaning. They look at the text, the structure, the legislative history, the purpose, interpretive canons. This is functionally what courts do in every case. This is why Chevron wasn’t some sort of complete judicial abdication. We didn’t go straight to, is this agency interpretation within the realm of reasonable? It was only when the statute was actually ambiguous.

Marc: Okay, before we wrap up today, help me understand the theory here. Why should agencies get any deference at all?

Gwen: There are several justifications, and they can lead to different results. The first is expertise. Agencies know their subject matter.

Marc: Makes sense. EPA understands pollution better than judges.

Gwen: Next one is democratic accountability. The agency heads are appointed by elected presidents. If you do not like what an agency is doing, theoretically, you can elect a new president. Judges, in contrast, have lifetime tenure and are accountable to nobody.

Marc: But then that makes interpretation seem political.

Gwen: Yeah, we can think about whether this is law or politics. Critics say Chevron enabled lawlessness. Defenders say it enables democratic choice within statutory bounds.

Marc: Could say all law is politics at a certain level.

Gwen: You definitely could. So what’s the third theory? So the last one is congressional intent. When Congress is using vague terms, that might be because they’re deliberately delegating that choice to the agency.

Marc: Or it could be that they couldn’t agree on specifics.

Gwen: Yeah. So sometimes this vagueness is going to be because they want the agency making the choice. Sometimes it’s because they couldn’t reach an agreement and they had to compromise. Sometimes it’s going to be because it just never occurred to anybody that what they were doing wasn’t clear.

Marc: And there could be like a fourth theory here, which is if Congress wanted to be more specific, this agency rule incentivizes Congress to be more specific rather than leaving their words to be interpreted by agencies.

Gwen: Yes, exactly. If they knew exactly what they wanted and they could agree on that, there wouldn’t be any reason in letting an agency take a chance potentially interpreting something differently. Chevron assumed that if there was ambiguity in the statute, that meant Congress had delegated it. Critics say that’s backwards. Ambiguity just means Congress didn’t decide, so courts should decide.

Marc: Any other theories?

Gwen: There’s one that’s just practical necessity. Here’s what Stevens said about it in Chevron.

Marc: Judges are not experts in the field and are not part of either political branch of the government.

Gwen: All right, keep going.

Marc: Courts must in some cases reconcile competing political interests, but not on the basis of the judges’ personal policy preferences.

Marc: So judges lack both expertise and political authority.

Gwen: This is really an argument about judicial modesty. But critics say interpreting law is exactly what judges do.

Marc: Even when it requires technical knowledge.

Gwen: That’s the tension. Is interpreting “stationary source” a legal question or a policy question?

Marc: It kind of seems like both.

Gwen: Chevron said when the legal question is unclear, it becomes a policy question and that we’re leaving to agencies. Critics, in contrast, would say that it is always a legal question, and that is always for a judge to decide.

Marc: Even the hard ones?

Gwen: Every case.

Marc: Let me make sure I’ve got this. Chevron created a two-step test that formalized what courts have been doing for almost a century, deferring to reasonable agency interpretations.

Gwen: Yes, and for 40 years, this shaped the entire administrative state. How agencies wrote rules, how businesses planned compliance, how Congress wrote statutes.

Marc: And every agency regulation we have talked about, organic food, net neutrality, they all depended on Chevron.

Gwen: Virtually everything agencies did depended at least to some extent on Chevron. Drug approvals, we’re looking at whether something is safe and effective. For workplace safety, we’re looking at whether something is feasible. In environmental areas, we’re looking at what is the best available technology. In financial regulation, what is systemically important.

Marc: All agency interpretations of vague terms.

Gwen: Yeah, those are all really vague. Under Chevron, courts would defer to any of these interpretations that seemed reasonable. Thousands of agency interpretations have been upheld under Chevron over the last four decades.

Marc: But now it’s gone.

Gwen: Yes. We won’t really take apart the death of Chevron for another couple episodes. Before that, we’ll have to talk about Skidmore, the other kind of theoretical deference that courts can give to agencies.

Marc: So that does it for today’s episode on Administrative Remedies. Thank you for joining us today. Please, if you enjoy this podcast and enjoy this episode, give us a like on Spotify, iTunes, or whatever platform you’re listening on. And be sure to tune in next time where we’ll continue to dive into the contours of administrative law, because remember, you can’t fix what you don’t understand.

Skidmore Transcript

S1E13 Transcript — Skidmore Deference

Gwen: Hello, and welcome to Administrative Remedies, because you can’t fix what you don’t understand. Brought to you in part by the University of Tulsa College of Law. I’m Gwendolyn Savitz, an associate professor here at TU and the associate dean of research and intellectual life.

Marc: And I’m Marc Roark. I’m the dean of the College of Law.

Gwen: We’ll be breaking down complex doctrines with real-life analogies and examples to demystify the world of administrative law for everyone trying to understand how government actually works.

Marc: Agencies are the main way the federal government gets things done. It’s not through Congress for reasons we’ll be addressing over the course of this series.

Gwen: Last time, we explored Chevron, the doctrine that set up an explicit two-part test that ruled administrative law for 40 years. Today, we’re going back further to what, as we’ll see next episode, is the only thing left standing, and that’s Skidmore.

Gwen: To try and put this in perspective, let’s think about two different patients. They’re sitting in the same doctor’s office. First, we have Chevelle.

Marc: Okay.

Gwen: So Chevelle’s been having headaches. The doctor does a complete exam. He checks her sinuses, her blood pressure, her sleep patterns, allergies, medication interactions, the whole deal. After all that, he says, take Zyvill twice a day for a week. This looks like allergy-related headaches. They should go away if we can clear up that congestion.

Marc: So thorough evaluation, clear recommendation.

Gwen: And Chevelle thinks, sure, that makes sense, picks up Zyvill and goes home.

Marc: Okay. She’s sensible.

Gwen: And then we have Sky. So Sky walks out of the same office after the exact same meeting, same examination, same issue, and says, you know what? I’d really like a second opinion. So she pulls out her phone, opens ChatGPT, and says, what should I do for headaches?

Marc: And ChatGPT replies.

Gwen: Headaches frequently arise from subtle shifts in your body’s mineral equilibrium, little electrolyte imbalances that accumulate through stress, screen exposure, and irregular hydration. A simple reset is to take 300 milligrams of magnesium glycinate, then drink a full glass of water with a pinch of mineral-rich sea salt. This combination supports neuromuscular relaxation, stabilizes cellular hydration, and helps your nervous system downshift out of the tension cycle that often produces headache symptoms.

Marc: Okay, I think I see where we’re heading.

Gwen: Sky thinks. Wow, this makes so much more sense than what the doctor was saying. I knew it was something deeper than allergies. Sea salt water. That sounds so natural, so holistic. Why didn’t the doctor mention this? Probably because doctors just don’t think about the whole body.

Marc: We know that it’s a particular source of water that makes you healthier. Clearly Sky knows that too.

Gwen: She’s going with whichever sounds better to her.

Marc: Yeah, she’s considering them both and going with what sounds more authoritative.

Gwen: The problem and the reason why we’re using this hypothetical situation is that ChatGPT sounds like that regardless of its veracity. Confident, like it’s reading from the book of all knowledge, even when it is completely wrong. Every doctor in the country has patients coming in saying stuff like, ChatGPT says I have a brain tumor because my eyelid twitched.

Marc: It’s like Googling symptoms, which was a problem for a really long time. If you could also repeatedly ask Google if it was right, and it could reassure you that it is 100% confident in what it’s telling you.

Gwen: And we lawyers have the equivalent. Lawyers asking whether a made-up case is real, and ChatGPT says, yes, absolutely 100% yes, and people trust that enough to turn it into a court.

Marc: Yes, and at that point, they get sanctioned for using fake cases. ChatGPT and other AIs, we’re just picking out one here, is great at generating stuff that sounds right. It’s not great at reliably diagnosing medical conditions, particularly when people had just put in the symptoms themselves and we haven’t had a lot of back and forth to try and clarify stuff. It’s also really bad at verifying legal precedent, two fields where “sounds right” is not enough.

Gwen: But Sky sees that confident tone and its reasoning and thinks, wow, this must be the correct answer, even though the doctor’s recommendation is based on an actual physical exam of her and his own medical reasoning.

Marc: Yes. Chevelle is deferring to the trained expert who examined her. Sky is following the chatbot because the advice sounds better to her.

Gwen: So Chevelle is Chevron.

Marc: Yes. And under Chevron, if Congress writes something ambiguous and the agency, the doctor here, does an analysis based on its expertise, courts defer to that interpretation. Because the agency is the expert in that case.

Gwen: Yes. Agencies are applying decades of institutional expertise. They’re like Chevelle’s doctor.

Marc: And Sky is Skidmore.

Gwen: Yep. Under Skidmore, the court doesn’t give any deference. It doesn’t have to. Agencies under Skidmore get respect only to the extent that their reasoning is persuasive.

Marc: So like Sky reading both answers and saying, I’ll go with whichever one I like better.

Gwen: Yes, this is kind of a convincingness test. The agency has to earn deference. It won’t receive it automatically. It has to persuade the court that its reading is the correct reading.

Marc: But that also opens the door to Sky’s mistake, giving equal or greater weight to an answer that just sounds confident or like what she wanted to hear, even if it’s uninformed.

Gwen: So in theory, Skidmore lets courts pick the better reasoning. In practice, courts pick the explanation that often sounds more appealing. This is like Sky’s ChatGPT answer instead of going with the expert’s detailed but complex reasoning that she doesn’t totally understand.

Marc: Which is how we end up with courts saying things like “this EPA interpretation is unreasonable,” even when the EPA’s experts spent years studying the science and the court spent maybe an afternoon with the briefs.

Gwen: We can think about it as Chevron is Chevelle. She’s trusting the expert who actually examined the problem. And Skidmore is Sky, deciding based on what seems persuasive. And that means that the non-expert’s answer could just sound better, regardless of its veracity.

Marc: And relying on the wrong one can cause headaches in medicine and in administrative law.

Gwen: Wasn’t that such a good setup?

Marc: That was nice.

Gwen: Okay, so where does Skidmore come from?

Marc: 1944, this is Skidmore v. Swift & Company.

Gwen: What happened in the case?

Marc: We had seven employees. They’re at a meatpacking plant in Texas, in Fort Worth, and they’re required to stay on the company premises waiting for fires to break out.

Gwen: Wait, they’re just waiting for the fires to break out?

Marc: Yes, they’re just auxiliary firemen at this meatpacking plant. They have to be on site in case of an emergency, but while they’re there waiting, they can sleep, they can play cards, they can eat. They can leave briefly if they’re just running a local errand, as long as they’re ready to respond if an alarm goes off.

Gwen: That sounds like a pretty good gig.

Marc: Maybe. But the question was, is this time where they’re just stuck there waiting, is this work under the Fair Labor Standards Act? Because if it is, they’re owed overtime pay.

Gwen: And the statute didn’t define that.

Marc: No, the Fair Labor Standards Act required overtime pay for work over 40 hours a week. But is sleeping in the firehouse work if you are contractually required to do it? Is eating dinner while you’re on call work? Is playing checkers while you’re waiting for the alarm work?

Gwen: I could see arguments both ways. They’re not actively doing anything, but they’re also not free to leave.

Marc: Yeah, and that’s what makes this case significant. The Wage and Hour Division of the Department of Labor, that was the agency officially in charge of the FLSA, had developed extensive guidelines on exactly this kind of situation. They’d issued bulletins. They’d issued opinion letters. Interpretive guides all trying to work out when waiting time counted as working time.

Gwen: The agency had thought about this and created a set of rules around what it means to work.

Marc: Yeah, they had thought about it extensively. But the crucial detail here is that they didn’t have any formal rulemaking authority. Congress hadn’t given them the power to issue binding regulations defining work. All they could do was offer these different types of guidances and interpretations.

Gwen: So their opinion was just an opinion.

Marc: That is what the company argued. And the court could have agreed. They don’t have the rulemaking authority. We don’t need to give them any deference. But instead, here’s what the court said.

Marc: 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.

Gwen: So power to persuade if lacking power to control. That’s the heart of Skidmore. The agency couldn’t force courts to accept its interpretation because, again, they had no formal rulemaking authority. But if the reasoning was good, courts should still listen.

Gwen: Here’s the part that people miss. Skidmore wasn’t significant because it created this new big deference test. It mattered because the relevant agency didn’t have rulemaking authority. They couldn’t issue binding regulations. All they could do was publish these interpretive guidances and memos.

Marc: So courts weren’t asking, should we defer to expert regulations? They were asking, should we defer to what an agency has to say, even when Congress didn’t give the agency rulemaking power?

Gwen: Yes, that’s why Skidmore says agency interpretations get respect only to the extent they’re persuasive. They don’t have the force of law behind them. But, and this is the key point, like we talked about last episode, courts have long been extremely deferential to agencies when they did have rulemaking authority. Skidmore was the exception, not the rule at that time.

Gwen: To try and explain this, we’re going to look at Yakus v. United States. This was decided just a few months before Skidmore. This is a case about wartime price controls, which had been granted an incredibly broad delegation of authority. And the Supreme Court basically said when Congress gives an agency the power to make binding rules, courts are not to micromanage that. Here’s what they said.

Marc: It is no objection that the determination of facts and the inferences to be drawn from them in the light of the statutory standards and declaration of policy call for the exercise of judgment, and for the formulation of subsidiary administrative policy within the prescribed statutory framework.

Gwen: If we translate that, they’re saying, yeah, agencies are going to have to use judgment, and that’s fine. That’s their job. We don’t need Congress to tell the agency exactly what to do. Then they go further.

Marc: Acting within its constitutional power to fix prices, it is for Congress to say whether the data on the basis of which prices are to be fixed are to be confined within a narrow or a broad range. In either case the only concern of courts is to ascertain whether the will of Congress has been obeyed.

Gwen: So this is incredibly deferential. The court is saying it doesn’t matter whether Congress was specific or vague. They could have absolutely been clearer. This was giving this agency the authority to determine what prices should be. Congress could have just said prices should be exactly what they were on this date. They didn’t do that. They gave the agency authority to determine what date they would be using for the prices. And that meant that the role of the courts was to just check whether the agency had stayed within the lane Congress drew.

Marc: And then we come to a line that really kind of crystallizes the constitutional philosophy of the era.

Marc: As we have said, the Constitution has never been regarded as denying to Congress the necessary resources of flexibility and practicality to perform its function. Hence, it is irrelevant that Congress might itself have prescribed the maximum prices or provided a more rigid standard. Congress is not confined to that method of executing its policy which involves the least possible delegation of discretion to administrative officers.

Gwen: This helps show why Skidmore looks so modest in comparison. At this time, courts were operating in a world where broad delegation and agency rulemaking authority meant strong judicial deference. Skidmore’s “respect proportional to persuasiveness” wasn’t the baseline. It was what courts did when agencies didn’t have actual legal rulemaking power. Meanwhile, in cases like this, the court was saying, if Congress gave you rulemaking power, we’re going to defer unless you’re wildly off course. This is the contrast that the modern court tends to blur and why it’s so important to understand Skidmore properly.

Marc: It is worth noting that this was a wartime powers issue. So we’re going to be particularly deferential to the executive then. But this was also a criminal case. So they could have very easily said it needed to be clearer than it was.

Gwen: So Skidmore wasn’t for everything. Then what affects the weight courts give to agency interpretations?

Marc: Under Skidmore, we’re looking at the thoroughness of the consideration. Did the agency think really hard about this, or is this just some quick opinion they dashed off before lunch?

Gwen: Okay, like whether my doctor actually examined someone or just took a brief look and dashed off a prescription.

Marc: Yes, like the thorough examination the doctor was giving in the hypo at the beginning here. The next one is the validity of the reasoning. Does the interpretation make sense? Is there a logical connection between the statutory text and the conclusion?

Gwen: So not just the agency saying, trust us, we’re the experts, but actually showing its work.

Marc: Exactly. And next, consistency with earlier and later pronouncements. Has the agency been saying the same thing over and over again, or has their position shifted depending on who’s asking?

Gwen: I thought that with Chevron, agencies could change.

Marc: Yes, and we’ll get back to that. So next is this catch-all, all those factors which give it power to persuade if lacking power to control. That’s things like, is this the area of the agency’s core expertise? How long have they been interpreting the statute? Have they consulted with different parties? Is there evidence Congress was aware of their interpretation and endorsed it?

Gwen: So when you add all this up, what makes an interpretation highly persuasive versus not persuasive at all?

Marc: Highly persuasive is a longstanding, consistent position from the agency, an agency that administers this exact statute that has been developing through careful study over years with detailed analyses explaining how it connects to the statutory text and purposes.

Gwen: Which I’ll point out is what the court was functionally saying the agency did in Skidmore.

Marc: That sounds like it would get almost as much respect as a binding regulation.

Gwen: And they often did. But we can contrast this with something that would get low persuasiveness, a litigation position that the agency was only presenting after it had been sued, contradicting what they’d said earlier, some sort of agency document with minimal analysis, something that was outside their main expertise.

Marc: And that basically gets no weight.

Gwen: Yeah. Courts are really skeptical of these ad hoc rationalizations. If you didn’t think about the reasoning until you got sued, it’s hard to claim it’s your considered expert judgment.

Marc: So it’s genuinely a spectrum, not a yes or no question.

Gwen: Yeah. And that makes Skidmore flexible and unpredictable. Judges have real discretion in weighing these factors.

Marc: Okay. So let’s go back to Chevron for a second. Remind me the difference between Chevron and Skidmore.

Gwen: Chevron was this binary test. Step one, is the statute clear? If yes, that’s the answer. If no, we go to step two. Is the agency’s interpretation reasonable? If it is, the agency wins. Period. The court doesn’t weigh factors. It doesn’t consider persuasiveness. As long as it’s reasonable, the agency interpretation controls.

Marc: So Chevron was an on-off switch and Skidmore was a dimmer.

Gwen: Yes, and agencies loved Chevron because it was predictable. If you went through notice and comment rulemaking and your interpretation was reasonable, assuming the statute was ambiguous, you won. You didn’t need to worry about whether a particular judge would find your reasoning persuasive enough.

Marc: Okay, so then what happened to Skidmore? For a while, scholars were starting to think that Chevron was really all there was and Skidmore was basically irrelevant.

Gwen: I’m sensing that that has changed.

Marc: It certainly has now, but it first changed in 2001 when the Supreme Court decided a case that functionally resurrected Skidmore.

Gwen: What happened in 2001?

Marc: United States v. Mead. Mead imported day planners, like spiral notebooks for scheduling appointments, and U.S. Customs had to classify those for tariff purposes. Were these going to count as bound diaries, which had a 4% tariff, or were these other notebooks, which had a 0% tariff?

Gwen: The fate of empires rests on whether a day planner is a diary.

Marc: The legal issues here were crucial. The Customs Service issued thousands of these tariff classification rulings, and they were claiming that every single one of them deserved Chevron deference.

Gwen: Did they get it?

Marc: No. And this is where Mead became really important. The Supreme Court said Chevron deference only applies when Congress has delegated authority to the agency to make rules with the force of law.

Gwen: So what does that mean?

Marc: Generally, they’re saying we’re only going to give Chevron deference for notice and comment rulemaking or formal rulemaking. If they wanted to do that, we’ll have to deal with formal rulemaking in another episode. Or formal adjudication. That’s also going to come up in another episode. But these are elaborate processes like what we talked about in the notice and comment rulemaking episode. Customs ruling letters, in contrast, these are issued by field offices. There’s thousands of them every year. There’s no public comment, no elaborate process.

Gwen: So no Chevron for basic ruling letters by agencies.

Marc: Yes. And here’s the crucial part. The court didn’t say those letters get no deference. Here’s what the court wrote.

Marc: There is room at least to raise a Skidmore claim here, where the regulatory scheme is highly detailed and Customs can bring the benefit of specialized experience to bear on this case’s questions. The classification ruling may at least seek a respect proportional to its power to persuade, and may claim the merit of its writer’s thoroughness, logic, and expertness, its fit with prior interpretations, and any other sources of weight.

Gwen: So Mead said that Skidmore was absolutely not dead, and now it suddenly applied to a huge category of agency actions.

Marc: Like what?

Gwen: Like the exact stuff we’ve been talking about in Skidmore. Opinion letters, policy statements, guidance documents, agency manuals, interpretive rules, enforcement policies. All of the different informal ways that agencies communicate their understanding of the law.

Marc: That’s mostly what agencies do.

Gwen: Yes. It is. Notice and comment rulemaking is really slow and expensive. Agencies do far more non-formal ways of letting the public know what they think. And after Mead, all of these other methods are getting Skidmore deference.

Marc: Okay. So then after Mead, we had two deference regimes running parallel to each other.

Gwen: Yeah. Here’s the hierarchy we had in place. The very top level is Chevron deference. This applies to notice and comment regulations, formal adjudications, things coming from a very high level of the agency that were legally binding. Agency’s reasonable interpretation controls in these situations. Then at the middle level, we have Skidmore deference. And this was opinion letters, guidance documents, policy statements. In these cases, the agency interpretation got weight based on its persuasiveness. And then the bottom tier, there was absolutely no deference to a position the agency had developed for the first time in litigation or other arbitrary actions the agency took.

Marc: Okay, so let’s get back to some real-world examples.

Gwen: Okay, the EEOC issues a guidance letter talking about when certain conduct constitutes workplace harassment. It’s a guidance letter, so that gets Skidmore, not Chevron. The IRS issues a revenue ruling interpreting the tax code. That gets Skidmore, not Chevron. The Department of Labor sends an opinion letter about overtime rules. That gets Skidmore. The FDA issues a warning letter about drug labeling. That gets Skidmore.

Marc: But if the EPA goes through full notice and comment to issue a new regulation about emissions—

Gwen: Then that gets Chevron.

Marc: This has created an interesting strategic choice for agencies.

Gwen: It did. Do you want the maximum deference courts give? Great. Go through the elaborate notice and comment process. Do you prefer flexibility and speed? Then go ahead and issue guidance documents, but accept that courts are really going to scrutinize your reasoning.

Marc: So the process itself was a signal about how much deference you’d get.

Gwen: Yes, and this created really useful incentives. Agencies couldn’t just issue informal guidance and demand that courts blindly defer to them. If the agency wanted strong deference, they had to do the work to earn it. It also meant that agencies that were issuing huge numbers of documents could choose how much time they wanted to spend on each one of those documents, since the explanation that would matter when we’re reviewing under Skidmore is the explanation the agency gave at the time, not an explanation it came up with in court later when its actions were challenged.

Marc: Okay. I’m hearing a lot of past tense in this description.

Gwen: Yeah. As we mentioned in the last episode, Chevron is dead. Next episode, we’re going to be talking about Loper Bright, the case that actually kills Chevron. We’ll talk about what the Supreme Court said, why they decided to overturn 40 years of Chevron precedent, and the implications for the administrative state going forward.

Marc: Because all of this constitutes a seismic shift for the way administrative law has operated.

Gwen: Yes, this is huge. Losing Chevron would have been bad if this had been the defining feature of the last four decades. But hopefully what’s been shown over this episode and the last one is that Chevron itself was just a codification of what courts had been doing for decades, since before the APA was even adopted. And now that it’s gone, we are in uncharted territory.

Marc: So that does it for today’s episode on Administrative Remedies. Thank you for joining us today. Please, if you enjoy this podcast, enjoy this episode, give us a like on Spotify, iTunes, or whatever platform you’re listening on. And be sure to tune in next time where we’ll continue to dive into the contours of administrative law, because remember, you can’t fix what you don’t understand.

Loper Bright Transcript

S1E14 Transcript — Loper Bright: The End of Chevron

Gwen: Hello, and welcome to Administrative Remedies, because you can’t fix what you don’t understand. Brought to you in part by the University of Tulsa College of Law. I’m Gwendolyn Savitz, an associate professor here at TU and the associate dean of research and intellectual life.

Marc: And I’m Marc Roark. I’m the dean of the College of Law.

Gwen: We’ll be breaking down complex doctrines with real-life analogies and examples to demystify the world of administrative law for everyone trying to understand how government actually works.

Marc: Agencies are the main way the federal government gets things done. It’s not through Congress for reasons we’ll be addressing over the course of this series.

Gwen: Last time we talked about Skidmore, the doctrine that says agency interpretations deserve respect only to the extent they’re persuasive. Today, we’re talking about the case that left nothing else standing, Loper Bright, the Supreme Court decision that overturned Chevron.

Marc: After 40 years. Overturned Chevron.

Gwen: Yes, after 40 years. But before we dig into why critics think this decision was wrong, we need to give the other side a fair hearing because there was a real problem Loper Bright was trying to solve.

Marc: So let’s go back to the babysitter.

Gwen: We can do that. You need somebody last minute. You’ve decided to use a babysitting service. So you leave the same instructions that you regularly do. Keep the kids safe when they play outside.

Marc: Reasonable expectation. That is certainly a minimum standard for a babysitter.

Gwen: Monday’s babysitter, we’re going to call her Suriah Stringent, interprets this very carefully. If the kids are on scooters, they need to be wearing helmets. They can’t leave the yard. There’s no climbing trees. She’s reapplying sunscreen every hour.

Marc: Reasonable expectation, a court under Chevron would defer to those choices.

Gwen: It would. And so then Wednesday comes, and this time you have a different babysitter from the service. This is Lindsay Laissez-Faire. Same instructions, keep the kids safe when they play outside. But Lindsay is interpreting this a bit differently. The kids don’t need helmets if they’re on scooters. They can walk to the park that’s three blocks away. It’s fine if they climb trees. That’ll build confidence.

Marc: Also reasonable. I mean, kids did this stuff in the 90s, and we mostly survived.

Gwen: We did. So both interpretations are defensible. Both babysitters can point to legitimate safety philosophies. And under Chevron, courts would defer to either one.

Marc: So what’s then the problem?

Gwen: Friday comes, and now Suriah’s back. The kids have to have helmets again. There’s no park. They can’t climb trees. The rules have changed again, even though the parents’ instructions never changed. And the kids are not happy.

Marc: Okay, and this is the case for Loper Bright, right? Stability, predictability.

Gwen: Yes, it is a real problem, and it’s a fair criticism of how Chevron worked in practice. But today, we’re going to explain why critics think the cure is worse than the disease. Why replacing agency expertise with judicial interpretation creates even bigger problems. Because the flip-flopping babysitters aren’t the only characters in the story.

Marc: There’s also the overconfident grandparents.

Gwen: There are grandparents who show up, see helmets and sunscreen, and absolutely lose it. In my day, we didn’t need any of this. The problem with kids today is you coddle them too much. And they override the babysitter, who’s been there all day watching the kids, making reasonable judgments, because they think they know the single correct meaning of “be careful.”

Marc: Courts basically replacing the babysitter.

Gwen: Yes, that’s Loper Bright. But first, let’s talk about what actually happened in the case.

Gwen: So Loper Bright Enterprises is a herring fishing company. They operate in federal waters off the Atlantic Coast, more like New Jersey area.

Marc: Herring fishing. Not very many constitutional cases that come out of herring fishing.

Gwen: Yeah, that’s how a lot of these cases seem to work. There’s pretty mundane facts, and from that we get massive doctrinal shifts. So for this case, under the Magnuson-Stevens Act, the National Oceanic and Atmospheric Administration has the authority to implement fishery management plans. One requirement is that certain boats have to carry federal observers.

Marc: Observers, you mean like people who watch them fish?

Gwen: Yes. These people are monitoring catch levels. They’re ensuring compliance with the regulations. And Congress has specifically authorized these observers. But what Congress didn’t clearly say was who pays for them.

Marc: I see where this is going.

Gwen: So in 2020, NOAA issued a rule requiring the industry to pay for the observers. This is about $700 a day. And for a small fishing operation, that was about 20% of their revenue.

Marc: That seems like a pretty significant financial burden.

Gwen: Which is why these were such great plaintiffs. The fishing companies argued Congress never said we had to pay for this. And under Chevron, if Congress hasn’t clearly spoken to an issue and the agency’s interpretation is reasonable, the agency would likely win. NOAA could point to the general authority to implement fishery management plans and say requiring industry funding is a reasonable way to implement that.

Marc: But the court didn’t apply Chevron.

Gwen: It did not. The court overruled Chevron entirely. Roberts wrote the majority opinion. Do you want to read the key holding here?

Marc: Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority as the Administrative Procedure Act requires. Careful attention to the judgment of the executive branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not, and under the Administrative Procedure Act, may not defer to an agency interpretation of the law simply because a statute is ambiguous.

Gwen: So the key phrase here is independent judgment. Courts will no longer defer to any reasonable agency interpretation. Courts decide for themselves what the statute means.

Marc: What was the court’s reasoning here?

Gwen: There’s a few things that Roberts was thinking about. First, he mentions the APA, the Administrative Procedure Act from 1946. That’s the rule that requires courts to decide all relevant questions of law. Here’s what he had to say about that.

Marc: The Administrative Procedure Act specifies that courts, not agencies, will decide all relevant questions of law arising on review of agency action, even those involving ambiguous laws.

Gwen: The APA part that he’s quoting is the part that says all relevant questions of law. It definitely does not say even those involving ambiguous laws. But second, he argued that Chevron conflicted with the Constitution. So courts interpret laws. That’s what Article III says they do. Deferring to agencies on any question of law means that courts are abdicating their constitutional role.

Marc: But wait, didn’t we talk about how courts have been deferring to agencies since before Chevron and really since before the Administrative Procedure Act?

Gwen: Yes, we did. We talked about cases going back decades before the APA where courts gave way to agency interpretations. And that’s one of the major criticisms of Loper Bright, that it rewrites history. But we’ll get to that.

Marc: OK, so what about the fishing companies? Did they win?

Gwen: This is one of those cases where the facts matter so little that it doesn’t even matter how it came out. The case was just remanded for the lower court to apply the new standard. So the impact here won’t be on the herring fishing industry. It’s about every agency interpretation of every ambiguous statute across the entire federal government.

Marc: Is this one of those cases where the stakes are so small because the arguments are so big?

Gwen: Yeah. That’s a good way to describe it.

Marc: Okay. So let’s dig into the criticisms.

Gwen: So we’re going to organize this around three big themes. First, the court rewrote history. We talked about that a little. Second, that the court misunderstands how modern governance works. And third, that the practical consequences are already causing chaos.

Gwen: So, first part of this, how the court rewrote history. Loper Bright describes Chevron as some kind of bizarre 1980s deviation from what the court had always done. The majority says the APA requires courts to decide questions of law independently, and Chevron violated that.

Marc: But we covered this in the Chevron episode. Courts were deferring to agencies long before 1984.

Gwen: Yes, exactly. This was like United States v. Hammers from 1911, where the court said agency interpretations were in the highest degree persuasive, if not controlling. Or Ford Motor Credit from 1980, just four years before Chevron, where the court said deference to the Federal Reserve was compelled by necessity.

Marc: And Yakus in 1944, right before the APA was passed.

Gwen: Yes. In Yakus, the court said, and we also quoted this in the earlier episode, that the Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality to perform its function. The court was extremely deferential to agencies that had been given rulemaking authority.

Marc: So Chevron wasn’t inventing anything new.

Gwen: It absolutely was not. It was formalizing what courts had been doing for decades. The two-step test really just made crystal clear and predictable what the courts were already doing. That underlying principle, that agencies with expertise and delegated authority deserve respect when interpreting the ambiguous statutes, I realize that we’re getting to kind of a broken record here. But here’s a case excerpt from United States v. Moore. It’s from ’77, and it, again, talks about the kind of deference that predated Chevron.

Marc: The construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration and ought not be overruled without cogent reasons. The officers concerned are usually able men and masters of the subject.

Gwen: All right. That dated language makes more sense when I tell you that this is an 1877 opinion. So to repeat. Courts were giving deference to agency interpretations of the statutes they were executing because they were experts in that area in 1877. The talk that says Chevron changed everything is like someone saying, in my day, we didn’t defer to agencies, except that you actually did all the time.

Marc: OK, but what’s the second criticism?

Gwen: The second issue is that the court fundamentally misunderstands how modern government works. Congress has to write statutes with flexible terms. Reasonable, feasible, appropriate, adequate.

Marc: We talked about this in the delegation episode where Congress can’t possibly specify every single thing. That’s why courts require an intelligible principle, but not a detailed set of instructions to mindlessly put in place.

Gwen: Right. And that’s not a flaw. That’s a feature of the process. The world is way too complex and changing too fast for Congress to anticipate every possible application of every statute. So Congress delegates. And agencies use scientists, engineers, economists, medical experts, risk analysis, real world data to try and figure out what these things should mean in specific contexts.

Marc: Judges are smart, but they’re generalists. They could see a fishery case, tax case, environmental case, labor case all in the same week. They don’t have the deep expertise that comes from working on these issues every single day for years.

Gwen: And so Loper Bright acknowledges this, right? I mean, Roberts says the courts can still consider agency expertise.

Marc: He says that careful attention to the judgment of the executive branch may help inform the court’s inquiry, but “may help inform” is very different from “defer to reasonable interpretations.” Under Chevron, if the agency did the work and reached a reasonable conclusion, that was enough. Under Loper Bright, the court will decide independently for itself what the statute means, and the agency’s views are just one input among many.

Gwen: What’s actually then happening in the courts?

Marc: Chaos.

Gwen: Let’s talk about a few different areas of law. This is where those flip-flop examples come in.

Marc: Yeah, partly. So remember that the argument for Loper Bright was that Chevron enabled flip-flopping. Agencies were changing interpretations each time a new presidential administration came in. As the parties changed, the interpretations changed. Net neutrality was a telecommunications service, then an information service, then a telecommunications service again. The joint employer test kept changing. The definition of waters of the United States under the Clean Water Act first covered temporary streams, then it didn’t, then it did again.

Gwen: So generally a destabilizing set of circumstances.

Marc: Yes, it was. But what Loper Bright’s critics are pointing out now is that instead of agency flip-flops in response to political changes, we have judicial fragmentation. Different circuits govern different parts of the country, and different circuits are reaching different conclusions about what statutes mean. And unlike agency interpretations, which at least apply to the entire country, these can be fragmented across the country at the same time.

Gwen: So instead of the rules changing every four to eight years with new administrations?

Marc: They change depending on what circuit you’re in. A company operating in the Fifth Circuit might face different legal requirements from a company in the Ninth Circuit, even though they’re subject to the same federal statute, because Loper Bright gave the courts an excuse to totally disregard what the agency was doing.

Gwen: That seems much worse, not better.

Marc: I would say here’s what the Second Circuit said about deference just months after Loper Bright.

Marc: Deference is now a relic of the past.

Gwen: A relic of the past. In that case, they were interpreting the definition of particularly serious crime for deportation purposes. These are life-altering determinations, whether someone gets to stay in the country. And courts are now saying that they’ll decide what the statutory terms mean with no deference to the agency that handles thousands of these cases.

Marc: What about the other areas?

Gwen: In labor law, the Fifth Circuit struck down the Department of Labor’s tipped wage rule. This was the 80-20 rule about how much time tipped employees could spend on non-tipped duties. And they did this explicitly using Loper Bright. We can see this in the environmental area, in energy regulations. The Sixth Circuit just struck down the FCC’s net neutrality rules.

Marc: The flip-flopping hasn’t stopped.

Gwen: It’s really just gotten more chaotic. At least under Chevron, we were likely to have a national interpretation. Now, different circuits are arriving at the one true meaning of the statute and coming out in different places.

Marc: And here’s what I keep thinking about. Judges don’t just interpret statutes in the abstract. They’re deciding real cases with real consequences.

Gwen: Yes. And when a court strikes down an EPA rule on particulate matter, that affects the air quality for millions of people. If a court reinterprets OSHA’s authority over workplace safety, that affects whether workers are protected from hazards. These aren’t academic exercises.

Marc: So let’s make this concrete. How does Loper Bright affect ordinary people’s lives?

Gwen: Here’s an example that could be a little more relatable. We’ve talked about how the Food, Drug and Cosmetic Act requires food labels to be truthful and not misleading. Congress said that the FDA is authorized to regulate health claims. These are statements that describe the relationship between a food substance and disease risk.

Marc: Like “may reduce the risk of heart disease.”

Gwen: Yes, or “supports a healthy immune system” or even “low fat.” But here’s the problem. Congress never defined what makes a claim false or misleading in this context. What level of scientific evidence do we need before a company can claim that their cereal reduces heart disease? Can you call something low fat if it has three grams of fat per serving? Two grams? Five?

Marc: So those seem like questions that need specific answers.

Gwen: They do. And FDA had been providing those answers for decades. They’ve developed detailed rules about what scientific evidence you need for different types of health claims. They’ve defined exactly what low fat and reduced sodium and good source of fiber mean. Under Chevron, courts would defer to FDA’s interpretation of misleading when the agency required, say, significant scientific agreement before a company could make a disease risk claim.

Marc: And now?

Gwen: All right. Well, imagine we’ve got a company that wants their product to say “prevents dementia.” The FDA says, no, there’s no science actually backing that up. That claim is misleading. But the company sues, and under Loper Bright, the court has no need to defer to FDA’s scientific judgment about what could make a health claim misleading. The court would decide independently what Congress meant by “false or misleading.”

Marc: So a federal judge with no background in clinical research or nutrition science is now deciding what level of evidence makes a health claim misleading versus truthful.

Gwen: Yes. A judge in the Fifth Circuit might think misleading only covers outright lies. If there’s any study supporting a claim, it’s not misleading. A judge in the Ninth Circuit might think misleading includes claims that cherry-pick weak evidence. Suddenly, the legal standard for food labeling depends on where you live.

Marc: So a company whose “prevents cancer” claim gets rejected in California could try again in Texas.

Gwen: They could, and they could be legally selling the product in Texas and not in California under whatever the relevant regulation was that theoretically applies uniformly across the country.

Marc: So this means that forum shopping is a real strategy.

Gwen: And the flip-flopping babysitter problem was real. FDA has changed its position on various labeling questions over the years. But again, when they did that, they were doing it on a national basis. Everyone selling food followed the same FDA interpretation of what misleading means. Now we can have a dozen different circuit court interpretations, each claiming to be the one true correct reading of what Congress meant.

Marc: Loper Bright said each statute has one single best meaning.

Gwen: Yes, it did. And that’s going to be true in practice if only one court ever interprets it. When you have hundreds of judges in a dozen circuits, each exercising independent judgment, you’re going to get different answers. And unlike when agencies flip-flop, there’s no mechanism for quick correction. It takes years to get circuit splits resolved by the Supreme Court if they even ever take it. Meanwhile, consumers don’t know which health claims to trust. And companies don’t know what they’re allowed to say. The whole point of having FDA interpret these terms was predictability and expertise. Now we’re trading agency flip-flopping for judicial fragmentation.

Marc: So now my cereal box is going to say “prevents heart disease, maybe.”

Gwen: It could say “prevents heart disease” here in Oklahoma and something totally different if you cross the line into Kansas.

Marc: Are there other areas like this?

Gwen: Same thing for drug approvals in the FDA. What does safe and effective mean for a new medication? This is going to apply in workplace safety, what counts as a recognized hazard. Environmental protection, what’s the best available technology for controlling pollution. We could go on and on. And all of that is now subject to independent judicial interpretation.

Marc: Yes, with courts that have a fraction of the agency’s expertise and resources.

Marc: There’s another dimension to this, isn’t there? What about who makes policy in a democracy?

Gwen: Yes. This is something that Justice Kagan emphasized in her dissent. When an agency interpreted an ambiguous statute, that interpretation was connected to the president. The president appointed the agency heads. If you didn’t like the EPA’s interpretation, elect a new president. Those kinds of changes were why we had those problematic flip-flops.

Marc: So agency interpretations were accountable to the voters in a sense.

Gwen: Yes, they were, at least to some extent. In contrast, judges have life tenure. They are not accountable to anyone. When a court decides what “waters of the United States” means, the only recourse would be for Congress to pass a new, clearer statute.

Marc: And we know how hard it is for Congress to pass anything.

Gwen: Yes, they’re absolutely gridlocked. They can barely pass a budget, let alone detailed technical legislation specifying what every statutory term means. By eliminating Chevron, the court shifted enormous power from the elected branches to the judiciary.

Marc: It seems rather ironic, actually. The court said Chevron gave too much power to agencies, unelected bureaucrats making the law, but now judges are also unelected, are making these decisions.

Gwen: Yes. The difference was that the agency heads at least served at the pleasure of the president, who was elected, and judges serve for life. So this makes it significantly less democratically accountable.

Marc: So the grandparents who never have to face the voters.

Gwen: Yes. And who can override the babysitter whenever they want, even though the babysitter is the one who’s actually accountable to the parents.

Marc: OK, so Chevron is gone. After 40 years, courts no longer defer to agency interpretations, which is a massive shift on its own.

Gwen: It is. But here’s the thing. Loper Bright isn’t the only major administrative law decision from that term. And next episode, we’re going to talk about a case that might be even more destabilizing.

Marc: Even more destabilizing than killing Chevron?

Gwen: At the time, it seemed almost inconceivable, which now seems quaint. But this is Corner Post v. Board of Governors. It’s about the statute of limitations and when you can challenge a regulation. In this case, the Supreme Court said the clock doesn’t start until you are personally injured by the rule, which means regulations that have been on the books for decades are open to challenge by anyone who wasn’t around when they were issued.

Marc: So Loper Bright says courts don’t defer to agencies and Corner Post says you can challenge regulations forever.

Gwen: Yes. Now you can see why I’m saying this is probably even more destabilizing. By adding these two together, you’re really multiplying the problems. Every old regulation is vulnerable to a fresh challenge. And when those challenges occur, they’re going to be decided by judges who no longer defer to the agency that wrote the regulation.

Marc: That sounds like chaos on top of chaos.

Gwen: It does. One of the dissenting judges said we’re going to be entering a regulatory Wild West. Next time, we’ll dig into exactly how that works and what it means. And that’s our season finale.

Marc: Yes, it will be. Corner Post is going to be the last episode of Season 1. We’ll wrap up by looking at where administrative law stands after this term, with Chevron gone, time limits gone, and what that’s going to mean for the regulatory state going forward.

Gwen: I’m looking forward to learning more about Corner Post.

Marc: Until then, I’m Marc Roark.

Gwen: And I’m Gwen Savitz. We will see you next time for the season finale.

Marc: So that does it for today’s episode on Administrative Remedies. Thank you for joining us today. Please, if you enjoy this podcast and enjoy this episode, give us a like on Spotify, iTunes, or whatever platform you’re listening on. And be sure to tune in next time where we’ll continue to dive into the contours of administrative law. Because remember, you can’t fix what you don’t understand.