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.
LawReview
