Volume 100, Number 6

In Loper Bright v. Raimondo, the Supreme Court adopted and deployed a particular narrative about agency action in support of overruling Chevron: Agencies reverse their own statutory interpretations “as much as [they] like[],” creating pervasive instability in the law, thereby destroying private reliance interests. Based on a study of two decades of agency regulations affirmed by the D.C. Circuit under Chevron, we show how infrequently agencies reversed their interpretive positions. Our study suggests that the Court’s regulatory “whiplash” narrative is overstated and that there is an underappreciated institutional settlement for notice-and-comment rules under Chevron. Identifying this regulatory settlement is important not only to correct the record but because it sheds light on a pressing question raised by Loper Bright: How much stare decisis effect should courts give to prior judicial decisions that affirmed an agency interpretation in reliance on Chevron? Our study reveals the true risks to legal stability that would come from courts re-interpreting the relevant statutory language and reversing previously upheld regulations. Courts therefore should have an extraordinary justification for overruling or avoiding precedent that affirmed an agency regulation under Chevron. In addition, our study provides guidance to courts on another significant issue after Loper Bright: How much respect should they give under Skidmore to regulations that amend the agency’s prior regulations in some respect? Although we find that agencies rarely reversed their interpretive positions under Chevron, we also find that they did revise their regulations in routine ways, as a necessary part of informed rulemaking. Our study suggests that courts should not treat any agency regulatory change as proving the Court’s whiplash narrative and as presumptively ousting amended regulations from judicial consideration and respect.

Agency rulemakings are a critical component of contemporary governance. This Article argues that there are a distinct set of modalities that characterize how agencies formulate and justify their rules. Just as the well-known modalities of constitutional interpretation capture the norms of constitutional discourse, the modalities of agency rulemaking offer a framework for understanding how agencies reason through and justify regulatory decisions. I show a common set of moves that agencies make across substantive contexts and across administrations. The rulemaking modalities are: (1) the public interest, (2) statutory purpose, (3) instrumental rationality, (4) technical expertise, (5) implementation considerations, and (6) cost-benefit analysis.

Exploring the modalities of agency rulemaking holds important lessons about the place of agencies in our system of government. First, attention to how the rulemaking modalities interact with each other—and in particular how agencies resolve tensions between modalities—provides an important study of how agencies balance competing pressures in justifying their policy choices. Second, attention to the modalities shows that agency rulemakings are methodologically distinctive—and distinctly appealing—relative to how Congress and the courts often make decisions. The rulemaking modalities are consistent with several desirable qualities that are often missing in other govermental decisionmaking: consideration of the full range of policy choices, attention to the likely consequences of various courses of action, and evidence-based reasoning for why government opts for one policy over other possibilities. Third, understanding the rulemaking modalities can shed light on how the “hard look” standard for judicial review of agency action operates, and how it should operate.

Administrative law is undergoing a tremendous amount of change. Presidential administrations have abandoned long-held practices and embraced new strategies to make policy through adjudication and regulation. Meanwhile, the Supreme Court has reworked foundational principles of federal administrative law including agency independence, adjudication, and legal interpretation. What does the pace and degree of change in administrative law mean for the federal courts? We posit that some answers lie in the Supreme Court’s decision in Kisor v. Wilkie and its application in the lower courts over the last five years.

In Kisor v. Wilkie, the Court was asked to reconsider its longstanding precedents concerning judicial deference to federal agencies’ interpretations of their own regulations. The result was a splintered decision that produced more questions than answers. Justice Kagan, writing for the plurality (and in parts, the Court), reaffirmed those precedents, including Auer and Seminole Rock, but also clarified and expanded the ways in which such deference should be constrained. Justice Gorsuch penned the principal opposing opinion, arguing that the Court should abandon Auer deference entirely. Chief Justice Roberts cast the deciding vote based on stare decisis, suggesting that “the distance between the majority and Justice Gorsuch is not as great as it may initially appear.” Justice Kavanaugh, also writing separately, predicted that under the Court’s new approach to Auer deference, courts will almost always afford no deference to an agency regulatory interpretation. Scholars and commentators have debated the impact Kisor will have on Auer deference going forward.

This Article sheds some empirical light on Kisor’s impact and what it means for the future of administrative law. In this Article, we present the findings of our review of every decision available on Westlaw from federal and state courts that cite Kisor— nearly 1,000 judicial decisions—to better understand how the decision has affected judicial deference of agency legal interpretation on the ground. We find, perhaps unsurprisingly, that lower courts have struggled to apply Auer deference in a consistent fashion after Kisor and that courts seem more likely to embrace Justice Kavanaugh’s approach than Justice Kagan’s. These findings illustrate the challenges of effectuating change in administrative law through the hierarchical structure of the federal judiciary. When overturning precedent, courts and litigants pay substantial attention to whether the current doctrine is workable. But judges and lawyers often ignore whether and how the replacement doctrine will be administrable. Following the Supreme Court’s decisions in Loper Bright, Jarkesy, and Corner Post, much more attention should be paid to how such reforms will be implemented by the lower courts and in the regulatory trenches. One way to achieve that, we argue, is for the Supreme Court to require this missing administrability inquiry to be part of the doctrine of stare decisis.

In overturning Chevron, the Supreme Court’s Loper Bright decision clearly changed the way in which courts must approach judicial review of agency actions interpreting statutes. But Loper Bright stopped well short of declaring that courts should always ignore agency interpretations and only interpret statutes using their independent judgment. In two critical paragraphs, the Court acknowledged that some statutory provisions delegate discretionary authority to agencies. The Court counseled a more restrained judicial review for reasoned decisionmaking when agencies exercise such power, arguably echoing the Chevron doctrine that Loper Bright overturned. But, whereas Chevron focused nearly exclusively on the purported ambiguity of the statutory word or phrase that an agency was endeavoring to interpret and implement, Loper Bright shifts the inquiry to the delegations themselves—i.e., the statutory terms that give agencies the authority to act in the first place. With this new emphasis in mind, and drawing on prior work, we propose a framework that categorizes statutory delegations of rulemaking power as specific authority, general authority/ housekeeping, and hybrid delegations. We then propose that Loper Bright is best understood and interpreted as demanding independent judgment review, potentially influenced by Skidmore’s contextual factors, for general authority/housekeeping rules and reserving the more restrained reasoned decisionmaking review for specific authority and hybrid rules. We explain how this approach harmonizes Loper Bright’s vision for judicial review of agency actions with the Supreme Court’s recent nondelegation and major questions jurisprudence. We also suggest that reading Loper Bright this way will cabin agency discretion in a manner that curtails agency overreach while still allowing executive discretion in implementing and administering statutory requirements.

The foundations of the administrative state are being reshaped, both by the continuing transformations of administrative law doctrine by the courts and by the ambitions for restructuring the executive branch among the current presidential administration. But at the same time, a defense of existing administrative structures seems inadequate. There are very real questions about the degree to which our current administrative institutions can be repurposed or leveraged toward urgent egalitarian and democratic goals of racial and gender equity, combatting concentrations of economic power, and dealing with the accelerating pressures of the climate crisis, among other priorities. How then should we conceptualize at a foundational level a response to the troubling challenges to administrative power ascendant today, while also motivating a broader reimagining of more progressive administrative power going forward?

This Article offers a novel theorization of the administrative state, which helps crystallize the nature of the far right’s vision of administration as well as the contours of a potential progressive counter vision. The central argument of the Article is that we should understand fights over administrative capacity as fundamentally intertwined with the commitment to and possibility of a more inclusive vision of citizenship. Administrative institutions are central to counteracting domination—the concentration of unaccountable power among both state entities and private actors. The construction (or deconstruction) of administrative capacities are thus backdoor ways to dial up or dial down the possibilities for inclusive citizenship, whether through the creation (or destruction) of affirmative state protections against discrimination, economic exploitation, or proactive provision (or dismantling) of freedom- and equality-enhancing benefits programs. Similarly, the reality of inclusive citizenship turns in large part on the presence (or dismantling) of those administrative capacities premised on perpetuating relations of domination or subordination—such as through the unchecked application of immigration enforcement powers.

Highlighting the link between capacity and citizenship yields two important payoffs. First, this approach clarifies the nature of the threats to the administrative state ascendant today from what the Article terms “reactionary administration.” This emergent consensus on the right is not simply about “free markets”; rather, it is about a combination of dismantling and strengthening different administrative capacities to reassert unequal economic and social relations. Second, this emphasis on the relationship between capacity and citizenship also helps provide a clear normative framework for reimagining how administrative power and structure ought to be reconfigured going forward for more egalitarian and democratic ends.

This theorization helps reorient our broader debates in administrative law scholarship and advocacy for the current moment. We are no longer in the realm of the conventional clash between “big government” and “free markets”; rather the debate is a deeper one over what configurations of administrative power are needed to advance particular visions of social and economic inclusion or exclusion. This fault line runs through discrete debates over particular doctrinal shifts and policy initiatives. indeed, as this Article will also suggest, while it may be tempting to default to familiar administrative law values of procedural neutrality and “checks and balances” to push back against the likely excesses of reactionary administration, these discourses are insufficient to address the very real limitations of our current administrative infrastructure from a progressive viewpoint—and these conventional frames cannot rebuild the broader legitimacy of the administrative state in this moment of extreme polarization and attack. instead, administrative law scholars and reformers must offer an affirmative, alternative moral vision of the administrative state—a vision to which this Article contributes a framework and starting point.

Over the last decade, federal regulations have faced increasingly more challenging hurdles. The Supreme Court’s 2024 decision in Loper Bright, putting an end to Chevron deference, and its 2022 decision in West Virginia v. EPA, announcing the “major questions doctrine,” have gotten the most attention. But the Court’s 2024 decision in Ohio v. EPA and its 2015 decision in Michigan v. EPA are also part of the equation. Moreover, since the second term of the Obama administration, state attorneys general of the party opposing the president have become aggressive litigants, often filing cases in single-judge divisions of judicial districts before sympathetic judges who frequently grant nationwide injunctions against the challenged rules. And since the first term of the Trump administration, incoming administrations have begun using a variety of tools, including disapprovals under the Congressional Review Act, to undo the regulatory output of predecessors of the opposite party.

Largely through empirical work, this Article explores how the Executive Branch has responded to these challenges—particularly during the last two years of the Biden administration—to make its regulations more resilient. First, the Article examines efforts to publish rules reflecting important administration policy priorities earlier in the last year of the president’s term than had previously been the case, thereby shielding them more effectively from hostile actions by an incoming administration. Second, the Article studies the far greater and far more robust use of severability as a tool to protect portions of regulations even if other portions of the same regulations are struck down. Third, the Article looks at the similarly more robust efforts of agencies to discuss the regulatory antecedents for their actions and, thus, improve their litigation position following Loper Bright and West Virginia v. EPA.

The Supreme Court has amplified Article II appointments and removal power over formal administrative adjudication. Both those in favor of and against this trend share assumptions about presidential influence over administrative power. For instance, both assume administrative discretion is at odds with political control. More specifically, unitary executive theorists view presidentialism as a way to limit agencies’ discretionary power, while those in favor of an autonomous administrative state believe that the civil service exercises expansive discretion because it is generally insulated from political control. In addition, this conversation overlooks the large expanse of informal administrative adjudication and enforcement decisions, which are neither conditioned by constitutional requirements nor anchored by consistent procedural requirements specified by the Administrative Procedure Act.

Building on these observations, this Article explores and demonstrates how administrative discretion, particularly within informal administrative contexts, is a significant mechanism for advancing presidential influence and control over agency action. It refers to this mechanism as the exercise of presidential administrative discretion. This paradigm is illustrated by case studies arising in regulatory areas including education, food safety, and immigration. Sometimes, informal administrative adjudication is shaped by presidential administration. Other times, White House directives to agencies, or pressure from an overarching presidential agenda, can result in particularized prosecutorial and enforcement discretion.

This Article argues that these examples shed light on under-valued aspects of the relationship between presidential and administrative authority. First, these dynamics show that unitary executive theory and anti-administrativism are, in fact, at odds, because presidents leverage administrative authority and “autonomy” to meet their goals. Second, these dynamics suggest that the civil service is less insulated from the president than is generally assumed. The result of all this, put simply, is that the bureaucracy may be more of a force-multiplier for presidential goals rather than an impediment to them. In theory, this ensures the professional implementation of lawful policies that also reflect the priorities of different presidential administrations over time. Sometimes, this leads to administration that supports the interests of a vulnerable public. More recently, presidential administrative discretion has reduced access to fair process and lawful administrative outcomes.

Lastly, this Article suggests alterations in longstanding, conventional frameworks of political control over agency action to shape and contain presidential administrative discretion. First, agencies might counterbalance presidential administrative discretion by democratizing administrative procedure. This could be accomplished by engaging the internal separation of powers to leverage a dissenting civil service, ramping up quality assurance within agencies, and controversially—involving public stakeholders in administrative adjudication. Second, the co-equal branches could check the executive. Indeed, the legislature could define informal procedure with greater nuance, through oversight and legislation, to ensure it is not wholly at the mercy of presidential administrative discretion. Also, the Court’s skepticism toward administrative discretion and its role in preserving due process could serve to constrain problematic forms of presidential administrative discretion. The judiciary could also stave off executive infringement on legislative and judicial authority resulting from presidential administrative discretion.

The Trump Administration’s assault on the administrative state has received significant attention. But it is a mistake to interpret the weakening of the administrative state during the first or second Trump Administration as exceptional, or as a cyclical, asymmetric phenomenon that characterizes Republican administrations. Rather, we are in the midst of a period of secular decline of the American state, albeit one that has become more acute in the second Trump Administration. This Article outlines fifteen dynamics in American politics, law, policy, and society that all push in the direction of secular decline. Some of these dynamics have been at play for decades, contributing to the already comparatively weak American state. Others are recently emergent or systemic features of decline. The consequences of decline are significant: a rise in harms to consumers, increased economic instability, less innovation, weakened resilience in crises, weakening global power and the rise of the power of adversaries, and social fracturing within society. Disrupting decline will require not just a commitment to building state capacity but understanding and accepting the uncomfortable truth that many of the causes of state decline have been longstanding.