The Download of the Week is Chevron's Legacy by Mila Sohoni. Here is the abstract:
In June 2024, the Court in Loper Bright Enterprises v. Raimondo overruled Chevron. In her Response to Professor Merrill’s recent Case Comment on the decision, Professor Mila Sohoni looks at the forces that may shape Loper Bright’s future development. Some would warmly welcome a world in which Loper Bright proved to make only relatively modest inroads on the Chevron regime. Others, to put it mildly, would not. The sentiment underlying the former position is obvious and is set out at length in Justice Kagan’s searing dissent — if courts replace agencies as the primary interpreters of statutes, the quality and quantity of federal regulation will be corroded, and America will suffer for it. The sentiment underlying the latter position is also not hard to grasp: Chevron was unlawful, the overruling of Chevron must mean something, and Loper Bright’s shoulder-to-shoulder six-Justice majority could not have meant to permit the reemergence of anything resembling the Chevron regime. This will be a dispute over the latent possibilities in the Loper Bright decision, and by the same token a dispute over Chevron’s legacy — over what, if any, legacy Chevron will be permitted to leave.
In the longer run, this abandoned landmark may prove to be pertinent in a different sense. An ancient principle of law and justice — namely, “you broke it, you own it” — means that it is now incumbent on the Roberts Court to ensure that the Loper Bright regime succeeds in transcending the problems that eventually undermined Chevron. As we have recently witnessed, it is not easy to create a coordinating framework for governing court-agency contestation over law and policy. The most promising place to look to understand how this feat might be accomplished is to learn from the saga of Chevron's rise and fall. The three factors that loomed largest in Chevron’s rejection were failures of judicial administrability or “workability”; a perception of unfairness; and a stark political realignment that transformed its erstwhile supporters into ardent opponents. If the Court can absorb the lessons of Chevron’s demise by making the Loper Bright framework into a workable, fair, and politically legitimate regime, then Chevron’s most lasting legacy will be the wisdom it left us in its passage.
Part I sets out how the Loper Bright framework in principle and in application has the potential to preserve dimensions of the realm of deference that Chevron once safeguarded. Anticipating resistance to this understanding of Loper Bright, this Part explains why Loper Bright should not be cabined to avoid recreating outcomes that echo or resemble Chevron. Part II looks to the road ahead. If the new Loper Bright regime is to succeed in transcending the kinds of problems that came to conquer Chevron, the Court must learn the lessons of Chevron’s fall. A brief conclusion follows.
Highly recommended.
