{"id":4074,"date":"2024-09-24T17:33:52","date_gmt":"2024-09-24T21:33:52","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jol\/?p=4074"},"modified":"2026-01-01T16:24:28","modified_gmt":"2026-01-01T21:24:28","slug":"two-takes-on-administrative-change-from-the-roberts-court","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jol\/2024\/09\/24\/two-takes-on-administrative-change-from-the-roberts-court\/","title":{"rendered":"Two Takes on Administrative Change from the Roberts Court"},"content":{"rendered":"

Daniel T. Deacon[*]<\/a> & Leah M. Litman[**]<\/a>\u00a0<\/span><\/strong><\/p>\n

\u00a0<\/p>\n

I. Introduction<\/span><\/p>\n

In Loper Bright Enterprises v. Raimondo<\/em>,1<\/a><\/sup>144 S. Ct. 2244 (2024). <\/span> the Supreme Court finally did what many long hoped (or feared) it would do: overrule Chevron v. Natural Resources Defense Council<\/em>.2<\/a><\/sup>467 U.S. 837 (1984), overruled by<\/em> Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024).<\/span> Chevron<\/em> instructed courts to defer to an agency\u2019s interpretation of an ambiguous statutory provision, provided the interpretation was reasonable.3<\/a><\/sup>See Chevron<\/em>, 467 U.S. 837.<\/span> Chevron<\/em>, according to Justice Kagan, had \u201cserved as a cornerstone of administrative law\u201d and \u201cthe warp and woof of modern government, supporting regulatory efforts of all kinds\u2014to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.\u201d4<\/a><\/sup>Loper Bright<\/em>, 144 S. Ct. at 2294 (Kagan, J., dissenting).<\/span> Not surprisingly, statutes governing such matters contain quite a number of ambiguities. Under Chevron<\/em>, agencies could rely on their expertise and policy views to resolve them. Under the new regime ushered in by Loper Bright<\/em>, courts will resolve ambiguities by determining what the \u201cbest\u201d interpretation of the statute is.5<\/a><\/sup>Loper Bright<\/em> contains two possible caveats\u2014it notes that Congress can delegate policymaking discretion to agencies (rather than legal determinations) and that courts may continue to apply a version of Skidmore<\/em> deference to agencies\u2019 interpretations of statutes. See Loper Bright<\/em>, 144 S. Ct. at 2258\u201360, 2264\u201365. <\/span><\/p>\n

In many respects, Loper Bright<\/em> was consistent with emergent patterns in the Roberts Court\u2019s jurisprudence. As Justice Kagan wrote in her dissent, \u201cit is impossible to pretend that today\u2019s decision is a one-off, in either its treatment of agencies or its treatment of precedent.\u201d6<\/a><\/sup>Loper Bright<\/em>, 144 S. Ct. at 2311 (Kagan, J., dissenting).<\/span> Loper Bright<\/em>, like many Roberts Court decisions, illustrated \u201cthe Court\u2019s resolve to roll back agency authority, despite congressional direction to the contrary.\u201d7<\/a><\/sup>Id.<\/em><\/span> The day before Loper Bright<\/em>, for example, the Court issued a decision holding that the Seventh Amendment prohibited the Securities and Exchange Commission (SEC) from levying civil penalties for securities fraud using the agency\u2019s internal adjudicative processes.8<\/a><\/sup>SEC v. Jarkesy, 144 S. Ct. 2117 (2024). For criticism about how Jarkesy<\/em> and other decisions effectively generate a new substantive due process doctrine based on freewheeling notions of liberty that is being used to refashion the institutions of the administrative state, see Leah M. Litman, The New Substantive Due Process<\/em>, 103 Tex. L. Rev.<\/span> __ (forthcoming 2025). <\/span> It also issued a decision pausing enforcement of the Environmental Protection Agency\u2019s (EPA) Good Neighbor Rule\u2014designed to combat interstate pollution\u2014by deploying an aggressive form of arbitrary-and-capricious review.9<\/a><\/sup>Ohio v. EPA, 144 S. Ct. 2040 (2024).<\/span> Loper Bright<\/em> also continued the Roberts Court\u2019s pattern of overruling precedent, either formally in an opinion, or effectively doing so by artificially narrowing or cabining previous cases.10<\/a><\/sup>See e.g.<\/em>, Dobbs v. Jackson Women\u2019s Health Org., 597 U.S. 215 (2022); Edwards v. Vannoy, 593 U.S. 255 (2021); Knick v. Twp. of Scott, 588 U.S. 180 (2019); Janus v. Am. Fed\u2019n of State, Cnty., & Mun. Emps., Council 31, 585 U.S. 878 (2018); Jarkesy<\/em>, 144 S. Ct. at 2117; Students for Fair Admissions, Inc. v. Presidents & Fellows of Harvard Coll., 600 U.S. 181 (2023); Kennedy v. Bremerton Sch. Dist., 597 U.S. 507 (2022).<\/span><\/p>\n

But in at least one respect, Loper Bright<\/em> marked a departure from a throughline in some of the Roberts Court\u2019s other decisions. In overruling Chevron<\/em>, the Court displayed open skepticism and even hostility to the notion that regulatory agencies could change their interpretations of ambiguous statutory provisions from presidential administration to presidential administration based on differing policy views. Yet in the Court\u2019s presidential removal cases, the Court has insisted that Presidents must have the power to remove agency heads to facilitate the President\u2019s ability to influence agencies\u2019 policy positions and reverse positions with which the new President disagrees. That puts these two lines of decisions in tension with one another: whereas in the removal cases, the Court views itself as ensuring that a President holds broad influence over an agency\u2019s policy positions, Loper Bright<\/em> restricts the degree to which agencies can adapt based on the views of the President. This essay outlines this tension before surveying some possible ways to resolve it.<\/p>\n

II. Two Attitudes Toward Changing Agency Views<\/span><\/p>\n

This Part contrasts the Court\u2019s skeptical posture toward policy-driven regulatory change in Loper Bright<\/em> with the Court\u2019s insistence, in the removal cases, that Presidents enjoy unfettered authority to remove agency officials so that they may maintain influence over policy. In the former context, the Court evinced considerable hostility toward agencies altering their positions in response to changes in administration; in the latter cases, the Court suggested that agencies changing positions across different presidential administrations is a natural and even affirmatively desirable component of democracy and electoral accountability.<\/p>\n

A. The End of <\/em>Chevron<\/p>\n

Chevron<\/em> was the foundational doctrine governing the interpretation of statutes administered by federal agencies. Under Chevron<\/em>, if a court applied the traditional tools of statutory interpretation and concluded that a statute was ambiguous on some point, the court would defer to the agency\u2019s reasonable resolution of that ambiguity.11<\/a><\/sup>See <\/em>Chevron v. Nat\u2019l Defs. Res. Council, 467 U.S. 837, 842\u201343 (1984).<\/span> There were various caveats or exceptions to this rule, such as the major questions doctrine, as well as limitations on the kind of agency determinations that received deference.12<\/a><\/sup>See <\/em>West Virginia v. EPA, 597 U.S. 697 (2022); United States v. Mead Corp.<\/em>, 533 U.S. 218 (2001). For criticisms of these exceptions, see Lisa Schultz Bressman, How \u201cMead\u201d Has Muddled Judicial Review of Agency Action<\/em>, 58 Vand. L. Rev.<\/span> 1443 (2005), and Daniel T. Deacon & Leah M. Litman, The New Major Questions Doctrine<\/em>, 109 Va. L. Rev. <\/span>1009 (2023).<\/span><\/p>\n

Chevron<\/em> itself involved an interpretive \u201cflip flop\u201d concerning the Clean Air Act. The Reagan EPA had taken the position that the phrase \u201cstationary source\u201d could be interpreted in a somewhat looser way than it had been read by prior administrations, with the effect that some sources of pollution would not be as stringently regulated as before.13<\/a><\/sup>See Chevron<\/em>, 467 U.S. at 839\u201340.<\/span> In blessing the EPA\u2019s new interpretation, the Court wrote that an agency\u2019s initial interpretation \u201cis not instantly carved in stone.\u201d14<\/a><\/sup>Id.<\/em> at 863.<\/span> And in fact, many early supporters of Chevron<\/em> were conservatives eager to roll back what they perceived as regulatory excess by prior Presidents.15<\/a><\/sup>See <\/em>William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from <\/em>Chevron to<\/em> Hamdan, 96 Geo. L.J.<\/span> 1083, 1087 (2008) (reporting that, after Chevron<\/em>, \u201c[a]lmost immediately, Reagan Administration officials and appointees proclaimed a \u2018Chevron<\/em> Revolution\u2019\u201d).<\/span> After it took hold, Chevron<\/em> structured the relationship between Congress, courts, and agencies for nearly four decades.<\/p>\n

But especially over the last eight or so years, the Supreme Court has evinced increasing skepticism of Chevron<\/em>, often by declining to rely on it or by announcing exceptions to it.16<\/a><\/sup>See<\/em> Deacon & Litman, supra<\/em> note 12, at 1019\u201320.<\/span> These efforts culminated in the Court\u2019s 2024 decision in Loper Bright Enterprises v. Raimondo<\/em>, which formally overruled Chevron<\/em> and directed courts to render their own best interpretation of statutes administered by agencies, regardless of how ambiguous the statute in question may be.17<\/a><\/sup>Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024).<\/span> The Court provided two caveats. First, it stated that with respect to some statutes\u2014including those using truly open-ended words such as \u201cappropriate\u201d or \u201creasonable\u201d\u2014the \u201cbest\u201d interpretation of the statute may be that the agency is \u201cauthorized to exercise a degree of discretion.\u201d18<\/a><\/sup>Id.<\/em> at 2263.<\/span> Second, the Court appeared to endorse the approach taken in Skidmore v. Swift<\/em>,19<\/a><\/sup>323 U.S. 134 (1944).<\/span> under which agencies\u2019 proffered interpretations are to be given \u201crespect\u201d to the extent they shed light on statutory meaning.20<\/a><\/sup>See Loper Bright<\/em>, 144 S. Ct. at 2259\u201365.<\/span> Importantly, and as discussed further below, Skidmore<\/em> gives less weight to agency interpretations that are inconsistent with the agency\u2019s prior views.21<\/a><\/sup>Id. <\/em>at 2259.<\/span><\/p>\n

One important consequence of overruling Chevron<\/em> is that agencies will be much more constrained in their ability to change policy from one administration to the next. Because Chevron<\/em> was based on the view that resolving statutory ambiguity involves an act of policymaking discretion, agencies were allowed to update or alter their interpretations based on their views on public policy.22<\/a><\/sup>See, e.g.<\/em>, Verizon v. FCC, 740 F.3d 623, 636 (D.C. Cir. 2014) (\u201c[S]o long as an agency \u2018adequately explains the reasons for a reversal of policy,\u2019 its new interpretation of a statute [is not to be] be rejected simply because it is new\u201d).<\/span> And even when courts deemed an agency\u2019s interpretation to be reasonable, that did not bar subsequent agency officials from reinterpreting the statute in a different way, provided that the new interpretation was also reasonable.23<\/a><\/sup>See<\/em> Nat\u2019l Cable & Telecomms. Ass\u2019n v. Brand X Internet Servs., 545 U.S. 967, 982\u201383 (2005).<\/span> Not so under Loper Bright<\/em>. Now courts are in charge of all questions of statutory interpretation. And once a court renders its \u201cbest\u201d interpretation, the agency is stuck with that interpretation indefinitely, absent a congressional amendment or subsequent judicial decision reversing the earlier one.<\/p>\n

In overruling Chevron<\/em>, the Court both understood that consequence and celebrated it. During the oral arguments in the Chevron<\/em> cases, the Republican-appointed Justices repeatedly expressed concern that Chevron<\/em> allowed agencies to flip back and forth between positions across different presidential administrations. Justice Kavanaugh evoked this idea in explaining why Skidmore<\/em> deference might be justified even though Chevron<\/em> is not. During oral argument, he observed that \u201c[a] big difference between Skidmore<\/em> and Chevron<\/em> — there are others — is, when the agency changes position every four years, that\u2019s going to still get Chevron<\/em> deference, but Skidmore<\/em>, with respect to that interpretation, would drop out because it\u2019s not been a consistent and contemporaneous — consistent from the contemporaneous understanding of the statute.\u201d24<\/a><\/sup>Transcript of Oral Argument at 39\u201340, Loper Bright, <\/em>144 S. Ct. 2244 (No. 22-451).<\/span> Justice Kavanaugh also described Chevron<\/em> as \u201cusher[ing] in shocks to the system every four or eight years when a new administration comes in, whether it\u2019s communications law or securities law or competition law or environmental law, and goes from pillar to post[.]\u201d25<\/a><\/sup>Transcript of Oral Argument at 96\u201397, Relentless, Inc. v. Dep\u2019t of Com., 144 S. Ct. 315 (2024) (No. 22-1219). See also id.<\/em> at 97\u201398 (\u201cI think they\u2019re doing it because they have disagreement with the policy of the prior administration and they\u2019re using what Chevron gives them and what they can\u2019t get through Congress to do it themselves, self-help\u201d).<\/span> Justice Gorsuch raised similar concerns,26<\/a><\/sup>Id. <\/em>at 23\u201324 (Justice Gorsuch: \u201cAnd I\u2019m struck on that score by the Brand X case, which involved broadband, in which this Court said, okay, agency, you automatically win with respect to one interpretation of the Bush administration, I believe it was, and then, of course, the next administration came back and proposed an opposite rule. MR. MARTINEZ: Right. JUSTICE GORSUCH: And then the next administration came back and flipped it back closer to the first. And as I understand it, the present Administration is thinking about going back\u201d).<\/span> calling Chevron<\/em> a \u201crecipe for instability\u201d and \u201ca recipe for anti-reliance.\u201d27<\/a><\/sup>Id.<\/em> at 93\u201394. <\/span> Echoing the Justices\u2019 complaints, the advocate challenging Chevron<\/em> described it as \u201ca reliance-destroying doctrine because it facilitates agency flip-flopping.\u201d28<\/a><\/sup>Oral Argument at 5, Loper Bright, <\/em>144 S. Ct. 2244 (No. 22-451). See also id.<\/em> at 22\u201323 (\u201cBut that absolutely makes clear that, you know, this is a reliance-destroying doctrine. And, frankly, if you said that Chevron is over and all of those step two cases that were decided are going to have stare decisis effect because of the level of generality point I made, you would be giving new stability to the law. It would be improving stability. And that\u2019s an important distinction from Kisor. In Kisor — you know, the Kisor doctrine — the Auer doctrine, rather, never had its Brand X moment where this Court made clear that the agency could flip 180 degrees. And, indeed, in Kisor itself, it suggested the opposite. But, here, with Chevron, we know this is a — a reliance-destroying doctrine\u201d); id.<\/em> at 24\u201325 (similar).<\/span><\/p>\n

These kinds of concerns were not completely new. Both in the Chevron<\/em> context and outside of it, various Justices had previously expressed disquiet with the executive branch changing positions after the inauguration of a new President.29<\/a><\/sup>See <\/em>Cristina M. Rodr\u00edguez, Foreword: Regime Change<\/em>, 135 Harv. L. Rev.<\/span> 1 (2021) (documenting such concerns and exploring the tension between them and democratic values); see also<\/em> Buffington v. McDonough, 143 S. Ct. 14, 20 (2022) (Gorsuch, J., dissenting from denial of certiorari) (\u201cWhen the law\u2019s meaning is never liquidated by a final independent judicial decision, when executive agents can at any time replace one reasonable interpretation with another, individuals can never be sure of their legal rights and duties\u201d).<\/span> And, not surprisingly, the same kind of complaint made its way into the Court\u2019s opinion in Loper Bright<\/em>. There, after explaining why Chevron<\/em> was wrongly decided, the Court proceeded to explain why the doctrine of stare decisis did not compel the Court to retain Chevron<\/em>. \u201cRather than safeguarding reliance interests,\u201d the Chief Justice wrote, \u201cChevron <\/em>affirmatively destroys them.\u201d30<\/a><\/sup>Loper Bright<\/em>, 144 S. Ct. at 2272.<\/span> That is so, the majority explained, because \u201c[u]nder Chevron<\/em>, a statutory ambiguity \u2026 becomes a license authorizing an agency to change positions as much as it likes.\u201d31<\/a><\/sup>Id.<\/em><\/span><\/p>\n

That the Court intended to clamp down on agencies changing their positions also came through in the Court\u2019s description of the Skidmore<\/em>-based approach the Court seemed to endorse in place of Chevron<\/em>. Skidmore<\/em> has come to be associated with numerous factors that courts use to judge the amount of respect due an agency\u2019s interpretation.32<\/a><\/sup>See generally<\/em> Kristin E. Hickman & Matthew D. Krueger, In Search of the Modern <\/em>Skidmore Standard<\/em>, 107 Colum. L. Rev.<\/span> 1235 (2007).<\/span> In Loper Bright<\/em>, the Court appeared especially eager to emphasize three: the interpretation\u2019s consistency with prior agency views, its longstandingness, and whether or not it was issued contemporaneously with the statute in question. In sharing its understanding of how courts traditionally review agency interpretations, the Court stressed that \u201crespect\u201d for an agency\u2019s interpretation \u201cwas thought especially warranted when an Executive Branch interpretation was issued roughly contemporaneously with enactment of the statute and remained consistent over time<\/em>.\u201d33<\/a><\/sup>Loper Bright<\/em>, 144 S. Ct. at 2247 (emphasis added).<\/span> Later on, the Court came back to the same theme: \u201c[I]nterpretations issued contemporaneously with the statute at issue, and which have remained consistent over time, may be especially useful in determining the statute\u2019s meaning.\u201d34<\/a><\/sup>Id.<\/em> at 2262. This standard of review channels the antinovelty elements of the major questions doctrine and the Court\u2019s constitutional interpretation in separation of powers cases. See <\/em>Deacon & Litman, supra<\/em> note 12, at 1069\u201382; Leah M. Litman, Debunking Antinovelty<\/em>, 66 Duke L.J.<\/span> 1407, 1407\u201308 (2017).<\/span><\/p>\n

B. Presidential Removal<\/em><\/p>\n

This section contrasts the Court\u2019s antipathy toward administrative agencies changing positions in the context of Chevron<\/em> with the Court\u2019s acceptance of the same in recent decisions on presidential removal authority. In the course of explaining why presidents generally must have the power to remove the heads of administrative agencies, the Court has emphasized agencies\u2019 discretionary authority and the President\u2019s right to control the exercise of such authority, including by directing agencies to change their positions. Indeed, the Court has insisted on presidential control over agencies precisely to enable control sufficient to ensure agencies will change positions based on the views of the current President<\/em>. And it has linked electorally driven changes in agencies\u2019 positions to various constitutional values including democracy and accountability.<\/p>\n

Some of these themes appeared in Justice Scalia\u2019s dissenting opinion in Morrison v. Olson<\/em>,35<\/a><\/sup>487 U.S. 654 (1988).<\/span> which is often depicted as foundational in removal debates. In that dissent, Justice Scalia spun out a parade of horribles that might result from upholding the independent counsel statute at issue in Morrison<\/em>. That statute allowed a prosecutor who was not removable at will by the president or the attorney general to investigate and bring charges against members of the executive branch, among other individuals. The parade of horribles Scalia identified resulted from the fact that, with respect to such prosecutors, \u201cthere would be no one accountable to the public.\u201d36<\/a><\/sup>Id.<\/em> at 731 (Scalia, J., dissenting).<\/span> For Scalia, that threatened to undermine a key safeguard \u201cthe Founders envisioned when they established a single Chief Executive accountable to the people: th[at] blame can be assigned to someone who can be punished.\u201d37<\/a><\/sup>Id.<\/em><\/span><\/p>\n

That people retain power to punish a chief executive for the decisions of their subordinates is, in this view, key to electoral accountability\u2014if voters disagree with decisions made by subordinate officials, they know to blame the president and can vote her out of office. The story necessarily assumes a decisionmaking space in which subordinate officials could arrive at several different decisions within the bounds of the law. In order for the prospect of electoral punishment to be an important safeguard, officials must have made a choice<\/em> which voters can evaluate and approve or disapprove via the ballot box. Moreover, if and when voters punish the president for such choices (by voting her out of office), it must be because they favor someone else inclined to select subordinates who would make different choices\u2014i.e., people who would alter the positions of their predecessors.<\/p>\n

In Free Enterprise Fund v. Public Company Accounting Oversight Board<\/em>,38<\/a><\/sup>561 U.S. 477 (2010).<\/span> the Court kicked off a trend of tightening the President\u2019s control over the administrative state. That case similarly centered on agencies\u2019 ability to reach different conclusions based on the policy views of the President.39<\/a><\/sup>See<\/em> id<\/em>.<\/span> Echoing Justice Scalia, the majority quoted Alexander Hamilton, writing that \u201c[w]ithout a clear and effective chain of command, the public cannot \u2018determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.\u2019\u201d40<\/a><\/sup>Id.<\/em> at 498 (quoting The Federalist<\/span> No. 70, at 476 (Alexander Hamilton) (Jacob Cooke ed., 1961)).<\/span> Subsequent passages in the opinion underscored that presidents possess the power to remove agency heads precisely to allow presidents to force subordinates to do the President\u2019s policy bidding. The majority opined that \u201c[t]he President has been given the power to oversee executive officers; he is not limited, as in Harry Truman\u2019s lament, to \u2018persuad[ing]\u2019 his unelected subordinates \u2018to do what they ought to do without persuasion.\u2019\u201d41<\/a><\/sup>Id.<\/em> at 501\u201302 (responding to dissent by Breyer, J., 561 U.S. at 524).<\/span> The Court added: \u201cCongress cannot reduce the Chief Magistrate to a cajoler-in-chief.\u201d42<\/a><\/sup>Id.<\/em> at 502.<\/span><\/p>\n

Here too, the Court\u2019s insistence that the President must be able to dictate policy outcomes seems to envision the possibility\u2014and the desirability\u2014of presidentially directed policy changes by administrative agencies. The briefing in Free Enterprise Fund<\/em> made the links more explicit, connecting the need for presidential removal to the possibility that elections might force agencies to change policy. The opening brief for the parties challenging the statutory protection from removal argued that \u201c[t]he people can remain sovereign only if they know which branch to hold responsible for unpopular or ineffective government action and policies, and only if they are able to correct those problems through periodic elections.\u201d43<\/a><\/sup>Brief for Petitioners at 13, Free Enter.<\/em>, 561 U.S. 477 (No. 08-861).<\/span> It is important, the brief continued, for \u201cthe people\u201d to know who is responsible for executing the laws (and other executive tasks) so that they \u201cwould be able to overturn unpopular execution through the ballot box.\u201d44<\/a><\/sup>Id<\/em>. at 13\u201314.<\/span> The brief underscored the need for the President to have the \u201cpower to ensure that the laws are exercised\u201d in ways \u201cconsistent with his enforcement or financial policies.\u201d45<\/a><\/sup>Id<\/em>. at 40.<\/span> The reply brief echoed similar themes.46<\/a><\/sup>See <\/em>Reply Brief at 1, Free Enter.<\/em>, 561 U.S. 477 (No. 08-861) (\u201cThe Board clearly runs afoul of these foundational purposes and this precedent because the democratically accountable President concededly has no direct influence over the Board\u201d); id.<\/em> at 4 (\u201cBy so dramatically limiting the group of principal officers who must be appointed through the confirmation process, Respondents\u2019 analysis eviscerates the Framers\u2019 purpose of ensuring \u2018political accountability relative to important Government assignments\u2019\u201d); id.<\/em> at 8\u20139 (\u201cThus, the President can easily perform his constitutionally assigned functions by directing the inferior officers through a chain of command, just as a general\u2019s ability to control a major is not affected because his orders are conveyed through a colonel. But since, unlike with his alter egos, the President has no power to command the SEC to follow his personnel or policy preferences, he obviously cannot engage in such chain-of-command supervision of the Board through the SEC\u201d).<\/span><\/p>\n

Seila Law LLC v. Consumer Financial Protection Bureau47<\/a><\/sup><\/em>140 S. Ct. 2183 (2020).<\/span><\/em> (CFPB) doubled down on this reasoning.48<\/a><\/sup>See <\/em>Transcript of Oral Argument at 75, Seila L.<\/em>, 140 S. Ct. 2183 (No. 19-7) (Justice Kavanaugh: \u201cThe next President in 2021 or 2025 or whenever will have to deal with a CFPB director appointed by the prior President potentially for his or her whole term without being able — given your answer to Justice Alito — being able to do anything about that difference in policy\u201d).<\/span> Seila <\/em>identified the CFPB Director\u2019s five-year term as uniquely problematic because it could impede the President\u2019s ability to influence the policy and direction of the agency. As the Court stated: \u201cSome Presidents may not have any opportunity to shape its leadership and thereby influence its activities.\u201d49<\/a><\/sup>Seila L.<\/em>, 140 S. Ct. at 2204 (2020).<\/span> The Court explained, echoing a line of questioning from Justice Kavanaugh at oral argument,50<\/a><\/sup>See <\/em>Transcript of Oral Argument at 36, Seila L.<\/em>, 140 S. Ct. 2183 (No. 19-7) (Justice Kavanaugh: \u201c[H]ow much does it matter that the tenure of the single director continues into the next President\u2019s term? Because I think that\u2019s when the problem really reveals itself, that the next President is going to have to deal for his or her whole term, potentially, with a CFPB director appointed by this President and will not be able to supervise or direct that person, even if that President has a wildly different conception of consumer financial protection?); id.<\/em> at 53\u201354 (\u201cAnd here\u2019s — on the different in kind, just how this will play out if you were to win, it\u2019s really the next President who\u2019s going to face the issue, because a — the head of this agency will go at least three or four years into the next President\u2019s term, and the next President might have a completely different conception of consumer financial regulatory issues yet will be able to do nothing about it\u201d).<\/span> that \u201can unlucky President might get elected on a consumer-protection platform and enter office only to find herself saddled with a holdover Director from the competing political party who is dead set against that agenda.\u201d51<\/a><\/sup>Seila L.<\/em>, 140 S. Ct. at 2204 (emphasis omitted).<\/span> Rather than accept that possibility, the Court emphasized the importance of a mechanism to \u201cbring the agency in line with the President\u2019s preferred policies.\u201d52<\/a><\/sup>Id.<\/em><\/span> Similar themes ran through oral argument and the briefing, where justices and parties stressed the necessity of protecting a president\u2019s ability to bring agencies in line with the President\u2019s policy preferences in order to ensure a responsive and accountable government.53<\/a><\/sup>See <\/em>Transcript of Oral Argument at 36, Seila L.<\/em>, 140 S. Ct. 2183 (No. 19-7) (Justice Kavanaugh invoking presidents who may have \u201cwildly different conceptions of consumer financial protection\u201d); id.<\/em> at 53\u201354 (similar); id.<\/em> at 61 (Justice Alito imagining a president who says \u201cI want to remove you because I think you are too pro-consumer and you\u2019re hurting the economy, or you are not sufficiently protecting consumer interests\u201d); see also <\/em>Brief for Petitioner at 28, Seila L.<\/em>, 140 S. Ct. 2183 (No. 19-7) (arguing that \u201c[t]he President possesses far less ability to control the single director of the CFPB,\u201d and thereby \u201cretain policy influence,\u201d compared to heads of multi-member commissions); Reply Brief for the Respondent at 1, Seila L.<\/em>, 140 S. Ct. 2183 (No. 19-7) (\u201c[Unrestricted removal authority] ensures that the Executive Branch is responsible to the Chief Executive, who is ultimately responsible to the people\u201d).<\/span><\/p>\n

Seila Law<\/em> thus stands in sharp contrast to Loper Bright<\/em>. While the former celebrated Presidents\u2019 ability to force changes by agencies, in Loper Bright <\/em>the Court was keen to limit agencies\u2019 ability to change their positions based on the views of a new President.<\/p>\n

III. Explanations<\/span><\/p>\n

As the above synthesis suggests, the Court has adopted very different orientations toward agencies changing positions in response to switches in presidential administrations. In the Chevron<\/em> context, the Court treated agencies changing positions based on the policy views of the President as a problem. In the context of presidential removal authority, however, the Court has sought to secure presidential control because the Court perceives it as important that a President be able to bring agencies in line with the President\u2019s views.<\/p>\n

This Part briefly considers three possible explanations for the Court\u2019s seemingly different attitude toward administrative change. The first is simply that the Court has a selective commitment to democratic control and democracy. The second is that the Court might be comfortable with change that occurs through the exercise of the executive\u2019s enforcement discretion, which is presumably unaffected by Loper Bright<\/em>, but not change that occurs through the issuance of new regulations. It concludes that neither of these two explanations adequately resolve the tension displayed by the Court\u2019s cases. A third possibility\u2014that the Court envisions regulatory change occurring solely through the kinds of express or quasi-express delegations referenced in Loper Bright<\/em>\u2014remains, but is difficult to assess at this point.<\/p>\n

A. Selective Commitment to Democracy<\/em><\/p>\n

One possible explanation for the Court\u2019s different attitude toward agency change would be that the Court has, at best, a selective commitment to democracy. In the presidential removal cases, the Court seems to view democracy as a virtue\u2014a way to ensure that unpopular policies and officials are subject to disapproval, and a way to ensure that democratically elected officials can influence administrative policy. In the Chevron<\/em> line of cases, however, the Court seems to view democracy as a vice\u2014a difficult and painful cost to regulated parties that is to be avoided.<\/p>\n

There are more than a few recent examples of Supreme Court decisions that have been criticized on the ground that they impede democracy, meaning the ability of popular majorities to govern, with all voters capable of casting meaningful votes.54<\/a><\/sup>See generally <\/em>Nicholas O. Stephanopoulos, The Anti-<\/em>Carolene Court<\/em>, 2019 Sup. Ct. Rev.<\/span> 111 (2019); Melissa Murray & Katherine Shaw, Dobbs and Democracy<\/em>, 137 Harv. L. Rev.<\/span> 728 (2024).<\/span> The Court invalidated a key provision of the Voting Rights Act, with the effect of invalidating the preclearance process of the Voting Rights Act.55<\/a><\/sup>Shelby Cnty. v. Holder, 570 U.S. 529 (2013). For criticism, see generally<\/em> Leah M. Litman, Inventing Equal Sovereignty<\/em>, 114 Mich. L. Rev<\/span>. 1207 (2016).<\/span> It narrowly construed another provision of the Voting Rights Act in ways that makes it difficult to challenge preconditions to voting.56<\/a><\/sup>See<\/em> Brnovich v. Democratic Nat\u2019l Comm., 594 U.S. 647 (2021). For criticism, see<\/em> Leah M. Litman, Hey Stephen<\/em>, 120 Mich. L. Rev<\/span>. 1109, 1120, 1123 (2022).<\/span> It has made it difficult to establish constitutional challenges to districting maps that dilute the power of minority voters.57<\/a><\/sup>See<\/em> Abbott v. Perez, 583 U.S. 1088 (2018); Alexander v. South Carolina Conf. of the NAACP, 602 U.S. —- (2024).<\/span> It has held open the possibility of embracing some version of the independent state legislature theory, which would allow federal courts to override state executive and judicial decisions that expand voting opportunities.58<\/a><\/sup>Moore v. Harper, 600 U.S. 1 (2023). For elaboration, see<\/em> Leah M. Litman & Katherine Shaw, The \u2018Bounds\u2019 of <\/em>Moore: Pluralism and State Judicial Review, 133 Yale<\/span> L.J. F. 881 (2024).<\/span> It has held partisan gerrymandering nonjusticiable.59<\/a><\/sup>See <\/em>Rucho v. Common Cause, 588 U.S. 684 (2019).<\/span> The list goes on. And of course, this jurisprudence has developed at a time when numerous elected Republican officials have expressed doubts about democracy as such.60<\/a><\/sup>See,<\/em> e.g.<\/em>, Glenn Thrush, \u2018We\u2019re not a democracy,\u2019 says Mike Lee, a Republican senator. That\u2019s a good thing, he adds<\/em>, N.Y. Times (Oct. 8, 2020), https:\/\/www.nytimes.com\/2020\/10\/08\/us\/elections\/mike-lee-democracy.html [https:\/\/perma.cc\/84DL-MJ63]; Zach Beauchamp, Sen. Mike Lee\u2019s tweets against \u201cdemocracy,\u201d explained<\/em>, Vox (Oct. 8, 2020), https:\/\/www.vox.com\/policy-and-politics\/21507713\/mike-lee-democracy-republic-trump-2020 [https:\/\/perma.cc\/DVP8-AHC6].<\/span> In that light, perhaps the removal cases are simply an exception to the Court\u2019s generally weak commitment to ensuring democratic control. Or, the cases reveal the Court\u2019s selective concern for democracy.<\/p>\n

Scholars have also detected a selective commitment to democracy within individual cases and between other related areas of law. For example, Melissa Murray and Katherine Shaw have argued that the Court\u2019s opinion in Dobbs v. Jackson Women\u2019s Health Organization<\/em> is internally inconsistent and wavering in its commitment to democracy.61<\/a><\/sup>See<\/em> Dobbs v. Jackson Women\u2019s Health Org., 597 U.S. 215 (2022); Murray et al., supra<\/em> note 54, at 729.<\/span> There, the Court emphasized the importance of democracy when insisting that state legislatures be given free rein to regulate and restrict abortion. But the Court discounted the anti-democratic features of those very same state legislatures, features brought about through partisan gerrymandering and enabled by the Court\u2019s own decisions. Murray has also explored the Court\u2019s selective commitment to democracy in the Court\u2019s cases on guns and abortion, where the Court has restricted legislatures\u2019 power vis-\u00e0-vis guns but expanded their power with respect to abortion.62<\/a><\/sup>See<\/em> Melissa Murray, Children of Men: The Roberts Court\u2019s Jurisprudence of Masculinity<\/em>, 60 Hous. L. Rev.<\/span> 799 (2023). Judge Wilkinson had previously written that the Court\u2019s Second Amendment decision in Heller v. District of Columbia, 554 U.S. 570 (2008), was the conservative equivalent of Roe v. Wade, 410 U.S. 113 (1973). See<\/em> J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law<\/em>, 95 Va. L. Rev<\/span>. 253, 254 (2009).<\/span><\/p>\n

Returning to the administrative-law context: If the Court is indeed being selective in its commitment to facilitating democratic control, the question remains\u2014what, if anything, might be put forward to explain such selectivity, i.e., when the Court favors democracy and when it does not? Perhaps some kinds of agency-driven changes are better than others, and the Court means to facilitate democratic control in those areas alone. We turn to such possible explanations next.<\/p>\n

B. Regulation vs. Enforcement Discretion<\/em><\/p>\n

The second possible explanation for the Court\u2019s wavering stance toward democratic control of administration is that the Chevron<\/em> cases view changes brought about through the promulgation of binding regulations as problematic, whereas the presidential removal cases mean to celebrate administrative change brought about through the exercise of agencies\u2019 enforcement discretion, i.e., agencies\u2019 power to set enforcement priorities or decline to enforce the law in particular circumstances. That is, perhaps the Court abandoned Chevron<\/em> because Chevron<\/em> allowed agencies to effect change via regulation, which the Court thinks is uniquely bad as far as stability and reliance go. But the Court in the removal cases does not think the same is true for changes in enforcement policies\u2014and those are the changes the Court has in mind in the removal cases when it celebrates presidential control as a way to change agency policy.<\/p>\n

The removal cases, however, do not suggest an exclusive focus on presidentially directed changes to enforcement policies, rather than regulations. Indeed, in the removal cases, the Court has emphasized that the agencies under review have significant regulatory powers as well as enforcement authority\u2014all while emphasizing the necessity of presidents\u2019 ability to bring agencies in line through directing change.63<\/a><\/sup>See, e.g.<\/em>, Seila L. LLC v. CFPB<\/em>, 140 S. Ct. 2183, 2193 (2020) (\u201cCongress authorized the CFPB to implement that broad standard (and the 18 pre-existing statutes placed under the agency\u2019s purview) through binding regulations\u201d).<\/span> So when the Court has waxed poetic about the importance of facilitating policy-based changes in these agencies, it has been in the context of agencies exercising their regulatory\u2014and not just enforcement\u2014powers.<\/p>\n

Nor is it clear that the Court is, or should be, more comfortable with enforcement-based changes than regulation-driven ones, or that enforcement-based changes would be less destabilizing than rule-driven ones. The Court divided evenly over the lawfulness of the Deferred Action for Parents of Americans and Lawful Permanent Residents program, an Obama-era initiative rooted in the executive\u2019s enforcement discretion.64<\/a><\/sup>See<\/em> United States v. Texas, 579 U.S. 547 (2016).<\/span> And changes that occur through regulation may better serve rule-of-law-type values, and better effectuate accountability and democracy, than changes rooted in enforcement discretion.65<\/a><\/sup>See<\/em> Daniel T. Deacon, Note, Deregulation Through Nonenforcement<\/em>, 85 N.Y.U. L. Rev<\/span>. 795 (2010).<\/span><\/p>\n

C. Policymaking vs. Interpretation<\/em><\/p>\n

A third possibility brings us back to Loper Bright<\/em>\u2019s suggestion that agencies will still retain discretion\u2014including, presumably, the ability to change positions\u2014where the best interpretation of the statute in question grants agencies a range of choices.66<\/a><\/sup>See supra<\/em> note 18 and accompanying text.<\/span> In other words, the Court appears to envision that courts will set the statutory boundaries that constrain agencies\u2019 decisionmaking, but that in some cases those boundaries will be broad enough to sustain a variety of policy outcomes. Perhaps it is in such cases, where Congress has, for example, expressly invested an agency with some policymaking discretion to specify applicable requirements, that the Court imagines the President will be able to effect change. In overruling Chevron<\/em>, the Court may mean to condemn only such agency changes that are \u201cinterpretive\u201d in character\u2014where the agency appears to be taking a different position about the meaning of some statute.<\/p>\n

This potential explanation is difficult to assess at this point in part because the Court\u2019s effort to demarcate the boundaries between permissible exercises of policymaking<\/em> discretion and impermissible attempts to alter statutes\u2019 meaning<\/em> was brief and under-developed.67<\/a><\/sup>For a more extensive academic effort, see<\/em> Jeffrey A. Pojanowski, Neoclassical Administrative Law<\/em>, 133 Harv. L. Rev<\/span>. 852 (2020).<\/span> In Loper Bright<\/em>, the Court merely observed that overruling Chevron<\/em> \u201cis not to say that Congress cannot or does not confer discretionary authority on agencies.\u201d68<\/a><\/sup>Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2268 (2024).<\/span> The Court did not elaborate on how to determine when agencies have been invested with discretionary policymaking authority by Congress. It did say that such authority may be indicated by the use of broad words like \u201cappropriate,\u201d but it may also soon find that Congress\u2019s use of such language is constitutionally suspect under the nondelegation doctrine.69<\/a><\/sup>See<\/em> Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding<\/em>, 121 Colum. L. Rev<\/span>. 277, 285\u201389 (2021) (documenting resurgence of nondelegation ideas in the Court\u2019s jurisprudence).<\/span><\/p>\n

The statutory delegation to the CFPB expressly mentioned by Seila Law <\/em>illustrates some of the difficulties courts will confront.70<\/a><\/sup>See <\/em>Seila L. LLC v. CFPB, 140 S. Ct. 2183, 2193 (2020).<\/span> The Consumer Financial Protection Act specifically authorizes the CFPB to \u201cprescribe rules . . . identifying as unlawful unfair, deceptive, or abusive acts or practices\u201d in connection with certain financial transactions.71<\/a><\/sup>12 U.S.C. \u00a7 5531(b).<\/span> In some ways, that delegation resembles a classic open-ended grant of discretionary authority. But this Court in particular may also be likely to say that each of the words used\u2014\u201cunfair,\u201d \u201cdeceptive,\u201d and \u201cabusive\u201d\u2014have interpretive edges that limit the universe of actions that agencies can classify as, for example, deceptive. Loper Bright<\/em> instructs courts to determine such boundaries using their independent judgment. How judges are to confront cases of this nature remains an open question. We doubt, as a predictive matter, that our current Supreme Court will allow the lower courts to drive a truck through Loper Bright<\/em>\u2019s exceptions. What is clear even now, however, is that Loper Bright <\/em>leaves agencies significantly less discretion to adapt their rules based on the views of the current administration.<\/p>\n

Finally, any explanation that suggests agencies have authority to change directions in areas of discretionary policymaking but not interpretation will of course not be satisfying to those who reasonably view the interpretation of statutes as calling for some degree of policymaking, at least when the statute\u2019s text is susceptible to different meanings. As Justice Kagan wrote in her Loper Bright<\/em> dissent, \u201cChevron\u2019<\/em>s presumption reflects that resolving statutory ambiguities, as Congress well knows, is \u2018often more a question of policy than of law.\u2019\u201d72<\/a><\/sup>Loper Bright<\/em>, 144 S. Ct. at 2299 (Kagan, J., dissenting) (quoting Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 696 (1991)); id.<\/em> (\u201cThe task is less one of construing a text than of balancing competing goals and values. Consider the statutory directive to achieve \u2018substantial restoration of the [Grand Canyon\u2019s] natural quiet.\u2019 Someone is going to have to decide exactly what that statute means for air traffic over the canyon. How many flights, in what places and at what times, are consistent with restoring enough natural quiet on the ground? That is a policy trade-off of a kind familiar to agencies\u2014but peculiarly unsuited to judges\u201d).<\/span><\/p>\n

IV. Conclusion<\/span><\/p>\n

This piece has focused on the differing attitudes the Court has displayed toward administrative change in the Court\u2019s opinion overruling Chevron<\/em> and in its decisions on presidential removal authority. There are, of course, important similarities between the two lines of cases. Both sets of cases reallocate decisionmaking authority between Congress, courts, and agencies in ways that give more authority to the courts. The presidential removal cases allow courts to second guess Congress\u2019s decisions about how to structure administrative bodies, and the decision to overrule Chevron<\/em> transfers power from those decisionmaking bodies to the courts. But it is still worth considering why the Court seems to have taken such different approaches to the prospect of administrative change caused by changeover in control of the presidency.<\/p>\n

\n

[*]<\/a> Assistant Professor of Law, University of Michigan Law School.<\/p>\n

[**]<\/a> Professor of Law, University of Michigan Law School.<\/p>\n\n\n

\n
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