{"id":4072,"date":"2024-09-24T17:05:06","date_gmt":"2024-09-24T21:05:06","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jol\/?p=4072"},"modified":"2026-01-01T16:23:19","modified_gmt":"2026-01-01T21:23:19","slug":"discretion-is-not-chevron-deference","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jol\/2024\/09\/24\/discretion-is-not-chevron-deference\/","title":{"rendered":"Discretion Is Not (Chevron) Deference"},"content":{"rendered":"

Donald L. R. Goodson [*]<\/a>\u00a0<\/span><\/strong><\/p>\n

\u00a0<\/p>\n

Discretion is not deference. Many often confuse the two, but the distinction is important, especially now that the Supreme Court has eliminated the deference doctrine associated with Chevron U.S.A., Inc. v. Natural Resources Defense Council<\/em>.1<\/a><\/sup>467 U.S. 837 (1984); see <\/em>Loper Bright Enters. v. Raimondo, 144 S.Ct. 2244, 2273 (2024) (overruling Chevron<\/em>).<\/span> Chevron<\/em> deference concerned ambiguous statutory terms or phrases (and implicit grants of authority2<\/a><\/sup>Chevron<\/em>, 467 U.S. at 844.<\/span>), while discretion often concerns unambiguously broad statutory terms or phrases (and explicit grants of authority3<\/a><\/sup>Loper Bright<\/em>, 144 S.Ct. at 2263.<\/span>). So even with Chevron<\/em> deference gone, agencies that can point to broad terms or phrases in the statutes they administer will retain wide latitude to carry out their missions. The Supreme Court made this clear in Loper Bright Enterprises v. Raimondo<\/em>, explaining, in juxtaposition to Chevron <\/em>deference, that a \u201cstatute\u2019s meaning may well be that the agency is authorized to exercise a degree of discretion,\u201d4<\/a><\/sup>Id.<\/em><\/span> and \u201ccourts must respect the delegation\u201d of this discretionary authority from Congress.5<\/a><\/sup>Id.<\/em> at 2273. <\/span><\/p>\n

To see the distinction between discretion and Chevron <\/em>deference, first consider the Chevron <\/em>opinion itself and the deference doctrine embodied in it. That case involved the meaning of \u201cstationary source\u201d as used in the Clean Air Act.6<\/a><\/sup>Chevron<\/em>, 467 U.S. at 839\u201340. <\/span> The Supreme Court concluded that the phrase was ambiguous as it could mean a single \u201cpollution-emitting device[],\u201d \u201call of the pollution-emitting devices within the same industrial grouping\u201d (also dubbed the \u201cplantwide definition\u201d or \u201cbubble concept\u201d), or \u201ca dual definition that could apply to both the entire \u2018bubble\u2019 and its components.\u201d7<\/a><\/sup>Id.<\/em> at 840, 859.<\/span> For various reasons, the Chevron<\/em> Court concluded that these kinds of ambiguous statutory terms or phrases convey an implicit grant of authority to the agency administering the statute, requiring courts to accept the agency\u2019s reasonable interpretations of such ambiguous terms or phrases.8<\/a><\/sup>Id.<\/em> at 842\u201345.<\/span> Of course, many have quibbled with those reasons.9<\/a><\/sup>See, e.g<\/em>., Loper Bright Enters. v. Raimondo, 144 S.Ct. 2244, 2263\u201367 (2024) (cataloguing the majority\u2019s critiques of Chevron <\/em>deference); see also <\/em>Michigan v. EPA, 576 U.S. 743, 760\u201363 (2015) (Thomas, J., concurring); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149\u201358 (10th Cir. 2016) (Gorsuch, J., concurring); Brett M. Kavanaugh, Fixing Statutory Interpretation<\/em>, 129 Harv. L. Rev<\/span>. 2118, 2143 (2016); Christopher J. Walker, Attacking<\/em> Auer and<\/em> Chevron Deference: A Literature Review<\/em>, 16 Geo. J. L. & Pub. Pol\u2019y,<\/span> 103 (2018) (surveying criticisms of Chevron<\/em> and Auer<\/em> deference). <\/span> But the reasons and any critiques of them are irrelevant for present purposes; the essential point is that only ambiguous terms or phrases triggered Chevron<\/em> deference. Accordingly, with Chevron<\/em> deference gone, courts are no longer required to defer to agencies\u2019 reasonable interpretations of ambiguous statutes; they must instead determine the best reading of such text themselves, guided by any other relevant doctrines.10<\/a><\/sup>See, e.g.<\/em>, Loper Bright<\/em>, 144 S. Ct. at 2266 (\u201cIt . . . makes no sense to speak of a \u2018permissible\u2019 interpretation that is not the one the court, after applying all relevant interpretive tools, concludes is best. In the business of statutory interpretation, if it is not the best, it is not permissible\u201d); see also id. <\/em>at 2262 (explaining that \u201ccourts must exercise independent judgment in determining the meaning of statutory provisions\u201d but \u201cmay . . . seek aid from the interpretations of those responsible for implementing particular statutes\u201d) (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). <\/span><\/p>\n

As Loper Bright <\/em>itself explains, discretion, in contrast, arises when statutes \u201c\u2018expressly delegate[]\u2019 to an agency the authority to give meaning to a particular statutory term\u201d11<\/a><\/sup>Loper Bright<\/em>, 144 S. Ct. at 2263 (noting statute in question \u201cexpressly delegated to the [agency] the power to prescribe standards for determining what constitutes \u2018unemployment\u2019 for [certain] purposes\u201d) (quoting Batterton v. Francis, 432 U.S. 416, 425 (1977)).<\/span> or \u201cprescribe rules to \u2018fill up the details\u2019 of a statutory scheme.\u201d12<\/a><\/sup>Id.<\/em> (quoting Wayman v. Southard, 10 Wheat 1, 43 (1825)). <\/span> Often, statutes also \u201cempower an agency . . . to regulate subject to the limits imposed by a term or phrase that \u2018leaves agencies with flexibility,\u2019 such as \u2018appropriate\u2019 or \u2018reasonable.\u2019\u201d13<\/a><\/sup>Id.<\/em> (citations omitted). <\/span> Such broad terms and phrases are incapable of precise definition, but they are not ambiguous; to the contrary, they are unambiguously open-ended. They represent an explicit grant of authority to the agency to choose from a wide range of options that the agency determines are reasonable, appropriate, feasible, practicable, in the public interest, and so on.<\/p>\n

Even the Chevron<\/em> opinion itself recognizes the deference-discretion distinction, or at least a flavor of it, explaining that, \u201c[i]f Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority for the agency to elucidate a specific provision of the statute by regulation,\u201d but \u201c[s]ometimes the legislative delegation to an agency on a particular question is implicit rather than explicit.\u201d14<\/a><\/sup>Chevron, U.S.A., Inc. v. Nat. Resources Def. Council, Inc., 467 U.S. 837, 843\u201344 (1984).<\/span> The explicit category overlaps with those broad and capacious terms that convey discretion; the implicit category covers the types of statutory ambiguities or silences so closely associated with Chevron<\/em> deference.15<\/a><\/sup>Justice Stevens, the author of Chevron<\/em>, effectively made this same point in Morgan Stanley Cap. Grp. v. Pub. Util. Dist. No. 1 of Snohomish Cnty. et al.<\/em>, explaining that \u201cCongress . . . used the general words \u2018just and reasonable\u2019 because it wanted to give FERC, not the courts, wide latitude in setting policy\u201d and contrasting such explicit gaps for agencies to fill with the types of implicit gaps associated with Chevron<\/em> deference. 554 U.S. 527, 557\u201358 (2008) (Stevens, J., dissenting). <\/span>
Few understand this distinction between discretion and deference better than Justice Kavanaugh, and it is hard to avoid the assumption that he played a role in ensuring the inclusion of key passages on the distinction in Loper Bright<\/em>. In a 2016 article reviewing Judge Robert A. Katzmann\u2019s Judging Statutes<\/em>, then-Judge Kavanaugh explained that he was not a fan of Chevron <\/em>deference. Among other things, he thought that the doctrine turned on a nebulous initial finding of ambiguity16<\/a><\/sup>See <\/em>Kavanaugh, supra<\/em> note 9, at 2118 (\u201cSeveral substantive principles of interpretation\u2014such as constitutional avoidance, use of legislative history, and Chevron<\/em>\u2014depend on an initial determination of whether a text is clear or ambiguous. But judges often cannot make that initial clarity versus ambiguity decision in a settled, principled, or evenhanded way\u201d).<\/span> and that judges were well-equipped to determine the best reading of a statute.17<\/a><\/sup>See id.<\/em> at 2154 (\u201cJudges are trained to [determine whether the agency\u2019s interpretation is the best reading of the statutory text], and it can be done in a neutral and impartial manner in most cases\u201d).<\/span> Given these views, he contended that, if \u201can agency is . . . interpreting a specific statutory term or phrase\u201d\u2014say, \u201cstationary source\u201d\u2014\u201ccourts should determine whether the agency\u2019s interpretation is the best reading of the statutory text\u201d rather than apply the two-part Chevron<\/em> deference framework.18<\/a><\/sup>Id.<\/em><\/span> This approach ultimately prevailed in Loper Bright<\/em>. At the same time, and notwithstanding his criticism of Chevron<\/em> deference, then-Judge Kavanaugh also believed that \u201ccourts should still defer to agencies in cases involving statutes using broad and open-ended terms like \u2018reasonable,\u2019 \u2018appropriate,\u2019 \u2018feasible,\u2019 or \u2018practicable.\u2019\u201d19<\/a><\/sup>Id.<\/em> at 2153.<\/span><\/p>\n

Justice Kavanaugh later repeated the same point in a 2019 concurring opinion in Kisor v. Wilkie<\/em>,20<\/a><\/sup>588 U.S. 558, 631\u201333 (2019) (Kavanaugh, J., concurring). <\/span> which addressed the related but separate question whether to eliminate Auer <\/em>deference to agencies\u2019 interpretations of their own ambiguous regulations.21<\/a><\/sup>As the Supreme Court explained in Kisor<\/em>, it \u201chas often deferred to agencies\u2019 reasonable readings of genuinely ambiguous regulations\u201d under \u201cAuer<\/em> deference, or sometimes Seminole Rock<\/em> deference, after two cases\u201d employing that practice. Id.<\/em> at 563 (citing Auer v. Robbins, 519 U.S. 452 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)). Auer <\/em>and Chevron <\/em>deference both apply a similar two-part deference framework; the former applies to agencies\u2019 interpretations of their own regulations, the latter to their interpretations of statutes they administer. See, e.g.<\/em>, Kisor<\/em>, 588 U.S. at 576 (comparing Auer<\/em> and Chevron<\/em> deference). <\/span> Just as Justice Kavanaugh would have cast Chevron <\/em>deference aside, he would have \u201cformally retired\u201d Auer<\/em> deference because he believed \u201ca judge should engage in appropriately rigorous scrutiny of an agency\u2019s interpretation of a regulation.\u201d22<\/a><\/sup>Id.<\/em> at 631, 633.<\/span> Again, however, he also believed that a judge should \u201cbe appropriately deferential to an agency\u2019s reasonable policy choices within the discretion allowed by regulation.\u201d23<\/a><\/sup>Id. <\/em>at 633.<\/span> In fact, Justice Kavanaugh emphasized that Auer<\/em> deference had nothing to do with \u201ccases involving regulations that employ broad and open-ended terms like \u2018reasonable,\u2019 \u2018appropriate,\u2019 \u2018feasible,\u2019 or \u2018practicable.\u2019\u201d24<\/a><\/sup>Id.<\/em> at 632.<\/span> He once more declared that \u201c[t]hose kinds of terms afford agencies broad policy discretion.\u201d25<\/a><\/sup>Id.<\/em><\/span><\/p>\n

Although Justice Kavanaugh did not author Loper Bright<\/em>, the majority opinion contains many of the same points, which arguably were unnecessary for the holding overruling Chevron<\/em> deference.26<\/a><\/sup>Most notably, after spending pages explaining that \u201c[t]he APA . . . incorporates the traditional understanding of the judicial function, under which courts must exercise independent judgment in determining the meaning of statutory provisions,\u201d the Supreme Court concluded this portion of the opinion by emphasizing\u2014just as Justice Kavanaugh had\u2014that the best reading of a given statute \u201cmay well be that the agency is authorized to exercise a degree of discretion.\u201d 144 S. Ct. at 2262\u201363; see also <\/em>Kavanaugh, supra <\/em>note 9, at 2152. <\/span> That Justice Kavanaugh felt compelled to repeatedly draw his readers\u2019 attention to the distinction between deference and discretion\u2014and that the Loper Bright <\/em>majority also went out of its way to do so\u2014may signal a concern among the Supreme Court\u2019s members that scholars, lawyers, and judges often do not understand the distinction between deference and discretion.<\/p>\n

New England Power Generators Association v. FERC<\/em>, a D.C. Circuit case involving the authority of the Federal Energy Regulation Commission (FERC) over interstate transmission and wholesale sales of electricity, provides an apt example of the confusion. In that case, the D.C. Circuit declared that \u201creasonable agency interpretations of ambiguous statutory terms like \u2018just and reasonable\u2019 are already subject to judicial deference under the regime set forth in Chevron<\/em>\u201d because the terms are \u201cobviously incapable of precise judicial definition.\u201d27<\/a><\/sup>707 F.3d 364, 370 (D.C. Cir. 2013). <\/span> These statements make little sense because \u201cjust and reasonable\u201d is not ambiguous; it is an intentionally broad, open-ended phrase that unambiguously conveys discretion. Chevron<\/em> deference thus has nothing to do with FERC\u2019s authority to determine just and reasonable rates for interstate transmission and wholesale sales of electricity. Despite these confusing statements, the D.C. Circuit went on to correctly observe that \u201c[t]he only question . . . is whether FERC exceeded the bounds of its considerable discretion\u201d in that case to determine whether a particular practice was \u201cjust and reasonable.\u201d28<\/a><\/sup>Id.<\/em> at 371.<\/span> And rather than determine whether FERC\u2019s interpretation of \u201cjust and reasonable\u201d was itself reasonable (as a court would do under Chevron<\/em>), the D.C. Circuit soundly concluded that FERC\u2019s challenged action should be upheld because it was a \u201creasonable choice within a gap left open by Congress\u201d for FERC to fill.29<\/a><\/sup>Id.<\/em> (quoting Chevron, U.S.A., Inc. v. Nat. Resources Def. Council, Inc., 467 U.S. 837, 866 (1984)). <\/span> The court got to the right result in the end, but it confusingly invoked Chevron<\/em> deference along the way.
Scholars, lawyers, and judges should keep this example in mind when assessing Loper Bright<\/em>\u2019s potential impact. If a past decision upholding an agency action incorrectly referenced or invoked Chevron<\/em> deference when it should have referenced discretion, eliminating Chevron<\/em> deference should not have any effect on the case. (In addition, as the Supreme Court noted, Loper Bright<\/em> itself does not call into question prior opinions that properly relied on Chevron<\/em> deference.30<\/a><\/sup>Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2273 (2024) (explaining that in overruling Chevron<\/em>, the Supreme Court \u201cdo[es] not call into question prior cases that relied on the Chevron<\/em> framework\u201d). <\/span>)<\/p>\n

One reason for the confusion may be that it is often hard to define discretion without using the term \u201cdeference,\u201d as the above examples from Justice Kavanaugh demonstrate. Dictionary definitions can be instructive in pinning down the difference. The verb \u201cdefer\u201d means to \u201csubmit to another\u2019s wishes, opinion, or governance usu[ally] through deference or respect.\u201d31<\/a><\/sup>Defer<\/em>, Merriam-Webster\u2019s Collegiate Dictionary<\/span> (11th ed. 2014). Note the circular use of deference even here.<\/span> This definition captures the general idea behind Chevron<\/em> deference: when there is more than one reasonable interpretation of a statutory term or phrase, courts should voluntarily acquiesce to the agency\u2019s opinion on the meaning of that term or phrase based on respect for the agency\u2019s judgment. The noun \u201cdiscretion,\u201d however, means \u201cpower of free decision or latitude of choice within certain legal bounds.\u201d32<\/a><\/sup>Discretion<\/em>, Merriam-Webster\u2019s Collegiate Dictionary<\/span> (11th ed. 2014).<\/span> In contrast to deference, discretion connotes compulsory accession to the views of another\u2014compulsory because Congress has given this choice to an agency, not the courts.<\/p>\n

These dictionary definitions, in conjunction with Justice Kavanaugh\u2019s attempts at distinguishing discretion and deference, may help illuminate the distinction. Open-ended terms like \u201creasonable,\u201d \u201cappropriate,\u201d \u201cfeasible,\u201d and \u201cpracticable\u201d afford agencies power of free decision or latitude of choice within certain legal bounds\u2014i.e., discretion. In those settings, Congress has given the agency\u2014not the courts\u2014latitude of choice over certain decisions.33<\/a><\/sup>Cf. <\/em>SEC v. Chenery Corp., 318 U.S. 80, 94 (1943) (\u201cIt is not for us to determine independently what is \u2018detrimental to the public interest or the interest of investors or consumers\u2019 or \u2018fair or equitable\u2019 within the meaning of \u2026 the Public Utility Holding Company Act of 1935\u201d).<\/span> So even with Chevron <\/em>deference gone and judges now required to determine whether an agency\u2019s interpretation of ambiguous statutory text is the best reading of that text (again, guided by any other relevant doctrines), judges must still abide by the agency\u2019s policy choices within the agency\u2019s statutorily granted discretion.
To be sure, even when Congress uses broad, open-ended terms or phrases, an agency\u2019s discretion is not limitless\u2014it must, by definition, be \u201cwithin certain legal bounds.\u201d34<\/a><\/sup>Discretion, supra <\/em>note 32.<\/span> As the Supreme Court explained in Loper Bright<\/em>, the reviewing court\u2019s role when confronted with a congressional grant of discretionary authority is to \u201cfix the boundaries of the delegated authority and ensure the agency has engaged in reasoned decisionmaking within those boundaries.\u201d35<\/a><\/sup>Loper Bright<\/em>, 144 S. Ct. at 2263 (cleaned up). <\/span><\/p>\n

When fixing such boundaries, as the Supreme Court explained in a different case involving FERC\u2019s authority under the Natural Gas Act, \u201cthe width of administrative authority must be measured in part by the purposes for which it was conferred.\u201d36<\/a><\/sup>Fed. Power Comm\u2019n v. Texaco Inc., 417 U.S. 380, 389 (1974).<\/span> This principle of interpretation applies in equal measure to broad, open-ended terms or phrases that convey discretion.37<\/a><\/sup>See<\/em>, e.g.<\/em>, NAACP v. Fed. Power Comm\u2019n, 425 U.S. 662, 669 (1976) (\u201cThus, in order to give content and meaning to the words \u2018public interest\u2019 as used in the Power and Gas Acts, it is necessary to look to the purposes for which the Acts were adopted\u201d).<\/span> Moreover, while even \u201ccapacious[]\u201d terms or phrases conveying broad discretion may also require agencies to consider \u201call the relevant factors,\u201d38<\/a><\/sup>Michigan v. EPA, 576 U.S. 743, 752 (2015) (quoting White Stallion Energy Ctr., LLC v. EPA, 748 F.3d 1222, 1266 (D.C. Cir. 2014) (Kavanaugh, J., concurring)). As Michigan v. EPA<\/em> suggests, arbitrary-and-capricious review under the Administrative Procedure Act gives further content to courts\u2019 review of agency exercises of broad discretionary authority. <\/span> they still provide agencies significant room to operate.39<\/a><\/sup>Consider the examples the Supreme Court offered in Loper Bright<\/em>, 144 S. Ct. at 2263 n.6 (providing as examples of discretionary authority 33 U.S.C. \u00a7 1312(a) (\u201crequiring establishment of effluent limitations \u2018[w]henever, in the judgment of the [EPA] Administrator \u2026, discharges of pollutants from a point source or group of point sources \u2026 would interfere with the attainment or maintenance of that water quality \u2026 which shall assure\u2019 various outcomes, such as the \u2018protection of public health\u2019 and \u2018public water supplies\u2019\u201d) and 42 U.S.C. \u00a7 7412(n)(1)(A) (\u201cdirecting EPA to regulate power plants \u2018if the Administrator finds such regulation is appropriate and necessary\u2019\u201d)) (alterations in original).<\/span><\/p>\n

It bears noting that the list of broad, open-ended terms and phrases conveying discretion provided earlier in this essay is not exhaustive.40<\/a><\/sup>Justice Kavanaugh acknowledged as much when introducing a similar list with the preposition \u201clike.\u201d Kavanaugh, supra<\/em> note 9, at 2153; Kisor v. Wilkie, 588 U.S. 558, 632 (2019) (Kavanaugh, J., concurring). <\/span> There are many other terms or phrases that convey similarly broad power of free decision or latitude of choice within certain legal bounds.41<\/a><\/sup>See<\/em>, e.g.<\/em>, Perkins v. Bergland, 608 F.2d 803, 906 (9th Cir. 1979) (explaining that \u201csuch terms as \u2018that (which) will best meet the needs of the American people\u2019 \u2026 \u2018breathe[] discretion at every pore\u2019\u201d) (quoting Strickland v. Morton, 519 F.2d 467, 469 (9th Cir. 1975)). <\/span> And there may be other terms or phrases that fall in the gray area between an unambiguously open-ended term or phrase (like reasonable) and an ambiguous one (like stationary source). Context may clarify into which category a term or phrase falls. In addition, as the Supreme Court noted in Loper Bright<\/em>, Congress may delegate discretionary authority to an agency to give meaning to a particular term or \u201cfill up the details.\u201d42<\/a><\/sup>Loper Bright<\/em>, 144 S. Ct. at 2263.<\/span><\/p>\n

As the above discussion further demonstrates, when an agency is exercising its authority under a discretionary grant of authority\u2014rather than claiming the authority to do so pursuant to ambiguous statutory text\u2014and when the exercise of such discretionary authority aligns with the \u201cpurposes for which it was conferred,\u201d43<\/a><\/sup>Fed. Power Comm\u2019n v. Texaco, Inc., 417 U.S. 380, 389 (1974).<\/span> the agency\u2019s actions should be \u201cgiven controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.\u201d44<\/a><\/sup>Morgan Stanley Cap. Grp. v. Pub. Util. Dist. No. 1 of Snohomish Cnty. et al., 554 U.S. 527, 558 (2008) (Stevens. J., dissenting) (quoting Chevron, 467 U.S. at 844).<\/span> This is the same standard of review Justice Kavanaugh referred to in his 2016 article when he compared the task courts confront when reviewing agency decisions pursuant to broad, open-ended terms and the \u201creasoned decisionmaking principle of State Farm<\/em>.\u201d45<\/a><\/sup>Kavanaugh, supra<\/em> note 9, at 2154. <\/span> Here, too, the Supreme Court echoed Justice Kavanaugh in Loper Bright<\/em>, explaining that a reviewing court confronted with an exercise of an agency\u2019s discretionary authority fulfills its judicial \u201crole by recognizing constitutional delegations, \u2018fix[ing] the boundaries of [the] delegated authority,\u2019 and ensuring the agency has engaged in reasoned decisionmaking\u2019 within those boundaries.\u201d46<\/a><\/sup>Loper Bright<\/em>, 144 S. Ct. at 2263 (citations omitted).<\/span>
The essence of discretion is the power of free decision or latitude of choice. Discretion often finds its source in unambiguously broad and open-ended terms or phrases, while Chevron<\/em> deference turned on ambiguous terms or phrases. Loper Bright<\/em>\u2019s overruling of Chevron <\/em>is accordingly limited to ambiguous statutory terms or phrases. It does not extend to unambiguously broad, open-ended terms or phrases that explicitly convey broad grants of authority to federal agencies.47<\/a><\/sup>Some may get to the end of this essay and wonder about the nondelegation doctrine. Cf. <\/em>Kavanaugh, supra <\/em>note 9, at 2154 n.177 (\u201cExcessive delegation may be another problem (at least for some) in the examples\u201d). Others have capably put that argument to rest. See, e.g.<\/em>, Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding<\/em>, 121 Colum. L. Rev.<\/span> 277, 284 (2021) (\u201cAlready by 1940, the Supreme Court was rejecting a nondelegation challenge to statutory authorization for a commission to set coal prices \u2018in the public interest\u2019\u201d). <\/span><\/p>\n

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[*]<\/a> Deputy Director, Institute for Policy Integrity at New York University School of Law. This article does not purport to represent the views, if any, of New York University School of Law.<\/p>\n\n\n

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Donald L. R. Goodson [*]\u00a0 \u00a0 Discretion is not deference. Many often confuse the two, but the distinction is important, […]<\/p>\n","protected":false},"author":103,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2,28,30],"tags":[],"class_list":["post-4072","post","type-post","status-publish","format-standard","hentry","category-featured","category-jol-online","category-jol-online-article"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/peZQ7o-13G","jetpack_sharing_enabled":true,"post_mailing_queue_ids":[],"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/posts\/4072","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/users\/103"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/comments?post=4072"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/posts\/4072\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/media?parent=4072"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/categories?post=4072"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/tags?post=4072"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}