{"id":4088,"date":"2024-10-24T00:51:08","date_gmt":"2024-10-24T04:51:08","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jol\/?p=4088"},"modified":"2026-01-01T16:24:22","modified_gmt":"2026-01-01T21:24:22","slug":"tossing-sand-in-the-regulatory-gears-hurdles-to-policy-progress-in-the-supreme-court","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jol\/2024\/10\/24\/tossing-sand-in-the-regulatory-gears-hurdles-to-policy-progress-in-the-supreme-court\/","title":{"rendered":"Tossing Sand In The Regulatory Gears: Hurdles To Policy Progress In The Supreme Court"},"content":{"rendered":"

Nina A. Mendelson [*]<\/a>\u00a0<\/span><\/strong><\/p>\n

\u00a0<\/p>\n

In the last few years, the Supreme Court has been a source of seismic change. In Dobbs v. Jackson Women\u2019s Health Organization<\/em>,1<\/a><\/sup>See <\/em>597 U.S. 215, 292 (2022). <\/span> the Court overruled Roe v. Wade<\/em>,2<\/a><\/sup>410 U.S. 113, 154 (1973).<\/span> which had protected the right to abortion for nearly fifty years. In Loper Bright Enterprises v. Raimondo<\/em>, the Court abandoned so-called Chevron <\/em>deference to particular categories of administrative agency interpretations, a doctrine viewed as bedrock for over forty years.3<\/a><\/sup>See <\/em>Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2273 (2024); see also <\/em>Kisor v. Wilkie, <\/em>588 U.S. 558, 589\u201390 (2019) (restricting previous approach of deference to agency interpretations of regulatory language). <\/span> Humphrey\u2019s Executor v. United States<\/em>,4<\/a><\/sup>295 U.S. 602, 631\u201332 (1935).<\/span> the 1935 ruling validating independent multi-member commissions such as the Federal Trade Commission, Securities and Exchange Commission, and Federal Communications Commission, may soon join the others on the chopping block.5<\/a><\/sup>In 2020, a majority of the Court suggested a default rule of unrestricted presidential removal power, against which its ruling in Humphrey\u2019s Executor <\/em>was described weakly as a limited exception, rather than defended. See,<\/em> e.g., <\/em>Seila Law, LLC v. CFPB, 591 U.S. 197, 204 (2020) (\u201cOur precedents have recognized only two exceptions to the President\u2019s unrestricted removal power\u201d); id. <\/em>at 228 (\u201c[T]he President\u2019s removal power is the rule, not the exception\u201d).<\/span><\/p>\n

But the Court has been far more skeptical when other governmental institutions seek change to address modern problems, whether it is Congress enacting regulatory legislation, or executive branch agencies seeking to exercise statutory authority. Governmental policy change can, of course, be critical to addressing newly significant problems, including climate change, environmental and health risks from widely used per-fluoroalkyl and polyfluoroalkyl substances (PFAS) found in industry and consumer products and other new pollutants, and innovative means of financial fraud. Policy change may also be needed to incorporate new technologies or other new solutions to societal problems or address new implementation issues that have emerged over time.<\/p>\n

Particularly in the last five years, the Court has hobbled numerous executive branch agency efforts to address modern challenges with a new interpretive move that, in 2022, it named the major questions doctrine (\u201cMQD\u201d).6<\/a><\/sup>West Virginia v. EPA, 597 U.S. 697, 723 (2022). <\/span> While the MQD has drawn controversy and attention, this essay argues that the MQD\u2019s creation is not an isolated judicial move. It is simply the most visible of a suite of alterations to administrative law and statutory interpretation doctrine, of which the Court\u2019s Loper Bright<\/em> ruling is the most recent example.<\/p>\n

As discussed in greater detail below, between 2019 and 2024, the Court not only developed the MQD, but altered the landscape of judicial deference to agency interpretations. The Court abandoned an attitude that had tolerated, and even lauded, agency policy change in many interpretive settings, replacing it with across-the-board antagonism to change. This included modifying so-called Skidmore<\/em> deference by significantly strengthening its existing anti-change aspects, making it what we might call Skidmore 2.0<\/em>.7<\/a><\/sup>See infra<\/em> text and accompanying notes 93\u2013102. <\/span> The Court also has strengthened anti-change aspects of arbitrary and capricious review by requiring agencies to consider the unwieldy factor of generalized reliance.8<\/a><\/sup>See infra <\/em>Section II.<\/span> Finally, the Court is developing additional statutory interpretation rules that disfavor regulatory legislation and limit its application, including a potential \u201cprivate property\u201d canon.9<\/a><\/sup>See infra <\/em>Section IV.<\/span><\/p>\n

All of these alterations have made the courts an increasingly powerful barrier to both legislative and executive policy change, ultimately impeding governmental institutions from addressing modern societal challenges in a democratically responsive fashion.<\/p>\n

I. The Major Questions Doctrine: The Court\u2019s Most Visible Anti-Change Move<\/span><\/p>\n

Under the MQD, first named by a majority of the Court in the 2022 decision West Virginia v. EPA<\/em>, the Court held that an agency\u2019s assertion of economically or politically significant authority would not be within the scope of an otherwise broad statutory grant of power unless the statute provides \u201cclear congressional authorization.\u201d10<\/a><\/sup>West Virginia<\/em>, 597 U.S. at 723; see <\/em>Biden v. Nebraska, 600 U.S. 477, 507 (2023) (\u201c[O]ur precedent . . . requires that Congress speak clearly before a Department Secretary can unilaterally alter large sections of the American economy\u201d). <\/span> The majority conceded that in major questions cases, the statutory language has often supplied a \u201ccolorable textual basis\u201d for the agency\u2019s interpretation.11<\/a><\/sup>West Virginia<\/em>, 597 U.S. at 722\u201323 (discussing major questions cases in which each claim to authority \u201chad a colorable textual basis,\u201d yet the Court found the action unauthorized).<\/span> But, the Court explained that extraordinary circumstances would prompt it to take a different approach, and instead to require a clear statutory statement.12<\/a><\/sup>Id.<\/em> at 724 (explaining that in major questions cases, \u201cthere may be reason to hesitate\u201d before accepting a statutory reading that would be upheld under ordinary circumstances) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)). <\/span> As the cases discussed below show, the statutory authorizing language must not only be clear, but specific.<\/em>13<\/a><\/sup>See<\/em> Daniel T. Deacon & Leah M. Litman, The New Major Questions Doctrine, <\/em>109 Va. L. Rev.<\/span> 1009, 1012 (2023) (explaining that the \u201cnew\u201d major questions doctrine requires \u201cexplicit and specific congressional authorization for certain agency policies\u201d).<\/span> Broad language seemingly will not do.<\/p>\n

Under the MQD, an agency\u2019s claim of significant authority to take action that can be characterized as new or different in kind is particularly vulnerable to challenge. In West Virginia v. EPA, <\/em>the agency had sought to regulate coal-fired power plant greenhouse gas emissions through a \u201cstandard of performance\u201d for existing coal-fired power plants known as the Clean Power Plan.14<\/a><\/sup>Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662 (Oct. 23, 2015). <\/span> Under the statutory provisions the Environmental Protection Agency (EPA) relied upon, it was then up to the states to issue the particular rules achieving those emissions reductions.15<\/a><\/sup>42 U.S.C. \u00a7 7411(d)(1). <\/span> \u201cStandard of performance\u201d was defined as a \u201cstandard for emissions\u201d reflecting the application of the \u201cbest system of emission reduction\u201d that has been \u201cadequately demonstrated.\u201d16<\/a><\/sup>42 U.S.C. \u00a7 7411(a)(1). <\/span> As the Court explained, EPA\u2019s standard was based on a number of potential measures to reduce emissions, including power plant operators burning coal more cleanly, shifting to cleaner fuels or renewables (so-called generation shifting), or participating in an emissions trading regime with other operators who had succeeded in lowering greenhouse gases, including by generation shifting.17<\/a><\/sup>West Virginia<\/em>, 597 U.S. at 697\u201398. <\/span> The Court conceded that these measures, including generation shifting, could be encompassed within the statute\u2019s language as a \u201csystem\u201d capable of reducing emissions.18<\/a><\/sup>Id.<\/em> at 732 (arguing that context was nonetheless critical to assessing the breadth of the term). <\/span> Other sections of the Clean Air Act that more narrowly authorized the agency to set \u201cstandards applicable to . . . emission[s],\u201d without referencing a \u201csystem,\u201d seemed to confirm the breadth of this particular authority.19<\/a><\/sup>See, e.g., <\/em>42 U.S.C. 7521(a)(1) (automotive emissions limits). <\/span> It is worth emphasizing that the policy\u2019s reliance on the market mechanism of emissions trading was an \u201cunqualified bull\u2019s-eye\u201d in terms of economic efficiency, since it \u201ccreate[d] economic incentives to have . . . pollution reductions undertaken by those . . . that can do so least expensively,\u201d the kind of regulatory approach also typically \u201ctrumpeted by Republican administrations.\u201d20<\/a><\/sup>Richard J. Lazarus, The Scalia Court: Environmental Law\u2019s Wrecking Crew within the Supreme Court, <\/em>47 Harv. Env. L. Rev. <\/span>407, 415\u201316 (2023) (mentioning the Reagan Administration as well as both Bush Administrations). <\/span> One might fairly infer that the statutory term \u201csystem\u201d had been chosen by Congress not only to enable the agency to respond to technological evolution, but also to evolving thinking on maximizing regulatory effectiveness.<\/p>\n

The Court hesitated to read the statute in this way, however, characterizing the Clean Power Plan as the agency asserting a \u201cnewfound power\u201d in a \u201crarely . . . used\u201d provision, because the agency had previously tended to set or call for source-based emissions limits.21<\/a><\/sup>West Virginia<\/em>, 597 U.S. at 724. <\/span> Calling the action \u201cnovel\u201d was a critical step in the Court\u2019s invocation of the major questions doctrine.22<\/a><\/sup>Id.<\/em> at 716. The Court also characterized the Clean Power Plan as implicating energy policy, something it viewed as beyond EPA\u2019s expertise. Id.<\/em> at 729. <\/span> Using that doctrine, the Court then rejected the broad term \u201csystem of emissions reduction\u201d as inadequately specific to authorize the Clean Power Plan.23<\/a><\/sup>See<\/em> id. <\/em>at 733. <\/span><\/p>\n

Similarly, in a case decided the previous year on the so-called shadow docket, Alabama Assn. of Realtors v. Department of Health and Human Services,<\/em>24<\/a><\/sup>594 U.S. 758, 765 (2021) (per curiam); see also <\/em>Util. Air Reg. Grp. v. EPA, 573 U.S. 302, 324 (2014) (declining to apply Chevron <\/em>in part because the agency was claiming \u201cunheralded\u201d regulatory power). <\/span> the Court alluded to the \u201cunprecedented\u201d nature of the Centers for Disease Control\u2019s assertion of statutory authority to institute a nationwide eviction moratorium in response to the COVID-19 pandemic. Again, the statute\u2019s language broadly authorized the agency to adopt measures \u201cnecessary to prevent\u201d the spread of disease, but the Court instead focused on the purported newness of the action. Despite evidence of disease transmission among the unhoused, the Court characterized the action as housing-focused, rather than aimed at combatting the spread of disease.25<\/a><\/sup>See Alabama<\/em>, 594 U.S. at 764 (\u201cThis downstream connection between eviction and the interstate spread of disease is markedly different from the direct targeting of disease. . .\u201d). <\/span> Again, the newness of the agency action was a key step in the Court\u2019s application of the MQD. The agency ultimately lost its claim that action was authorized for lack of specific statutory language.<\/p>\n

In National Federation of Independent Business v. Occupational Safety and Health Administration<\/em>, the Court held that the power of the Occupational Safety and Health Administration (OSHA) over \u201coccupational safety and health standards\u201d did not permit it to require large employers to institute a \u201cvaccine or test\u201d rule during the early years of the COVID-19 pandemic, an action the Court also found to be unprecedented.26<\/a><\/sup>595 U.S. 109, 113 (2022) (\u201cOSHA has never before imposed such a mandate\u201d). <\/span> Although the statute made reference to \u201coccupational . . . health\u201d as well as \u201csafety,\u201d language facially clear enough to authorize a rule aimed at reducing workplace disease transmission, the Court nonetheless invalidated the rule because the statute\u2019s authorization was not sufficiently specific.27<\/a><\/sup>Id. <\/em>at 117\u201318 (holding that although the agency was tasked with regulating \u201coccupational\u201d hazards and health of employees, that authority did not extend to COVID-19). <\/span> Similarly, in Biden v. Nebraska, <\/em>the Court characterized the agency\u2019s claimed use of its power to \u201cwaive or modify\u201d student loans to waive repayment obligations as creating a \u201cnovel and fundamentally different loan forgiveness program.\u201d28<\/a><\/sup>600 U.S. 477, 494, 496 (2023).<\/span> It then applied the MQD to strike down the action, finding the statutory language inadequately specific to meet the \u201cclear congressional authorization\u201d requirement.29<\/a><\/sup>Id.<\/em> at 506. <\/span><\/p>\n

The major questions doctrine is deeply problematic because it lacks objective criteria for a \u201cmajor\u201d question or \u201csignificant\u201d economic or political impact, thus conferring substantial discretion on courts and making its application unpredictable.30<\/a><\/sup>Nathan Richardson, Antideference: COVID, Climate, and the Rise of the Major Questions Canon, <\/em>108 Va. L. Rev. Online<\/span> 174, 195 (2022) (\u201cThe most prominent critique of the major questions doctrine has been that its boundaries are unclear, unpredictable, and arbitrary\u201d); see also<\/em> Natasha Brunstein & Richard L. Revesz, Mangling the Major Questions Doctrine, <\/em>74 Admin. L. Rev.<\/span> 217, 253 (2022) (\u201cIt is hard to imagine that the courts could develop judicially manageable standards [on the public salience question]\u201d); Lisa Heinzerling, The Power Canons, <\/em>58 Wm. & Mary L. Rev.<\/span> 1933, 1983\u201384 (2017) (critiquing the major questions doctrine as unpredictable, among other things); Ronald M. Levin, The Major Questions Doctrine: Unfounded, Unbounded, and Confounded,<\/em> 112 Cal. L. Rev.<\/span> 899, 927\u201329 (2024) (\u201cit is too soon to assess how flexibly the Court will implement the major questions doctrine over time\u201d). <\/span> It seems hard to justify as a substantive interpretive canon that would effectuate the nondelegation doctrine, since that doctrine does not preclude large delegations to agencies, only unprincipled ones.31<\/a><\/sup>See <\/em>Daniel E. Walters, The Major Questions Doctrine at the Boundaries of Interpretive Law, <\/em>109 Iowa L. Rev.<\/span> 465, 517 (2024) (\u201c[T]he Supreme Court has never linked majorness to the nondelegation doctrine\u201d); see also <\/em>Mila Sohoni, The Major Questions Quartet, <\/em>136 Harv. L. Rev.<\/span> 262, 287 (2022); see<\/em> generally <\/em>Deacon & Litman, supra <\/em>note 13. <\/span> The MQD also cannot be justified as an interpretive rule that provides Congress with a stable background for legislation, since, even if the MQD could be considered predictable, a dubious proposition, the MQD has been applied to statutes enacted long before the MQD was created, when Congress could not have anticipated it.32<\/a><\/sup>See <\/em>Nina Mendelson, Change, Creation, and Unpredictability in Statutory Interpretation: Interpretive Canon Use in the Roberts Court\u2019s First Decade, <\/em>117 Mich. L. Rev. <\/span>71, 87\u201388 (2018) (discussing conditions necessary for the substantive canon to function as a stable background and commenting, \u201cCongress obviously cannot anticipate a not-yet-developed canon\u201d); see also <\/em>Amy Coney Barrett, Substantive Canons and Faithful Agency, <\/em>90 B.U. L. Rev.<\/span> 109, 117 (2010) (arguing that substantive canons are in significant tension with the role of the judiciary as the faithful agent of the legislature); Walters, supra <\/em>note 31, at 535\u201337 (\u201cthe major questions doctrine\u2019s novelty makes it a difficult fit\u201d for the theory that canons can contribute to a \u201cstable background\u201d for legislative drafters); see generally <\/em>Deacon & Litman, supra <\/em>note 13, at 1084 (\u201cCongress did not draft most of the important federal regulatory statutes currently in existence with knowledge of the [major questions doctrine]\u201d). <\/span> Finally, the MQD also seems difficult to justify as a \u201ccommon sense\u201d assumption about congressional use of language, a sort of linguistic canon presented by Justice Amy Coney Barrett in her concurrence in Biden v. Nebraska<\/em>.33<\/a><\/sup>See<\/em> 600 U.S. at 511\u201317 (Barrett, J., concurring) (arguing that major questions doctrine simply reflects \u201ccommon sense\u201d approach to reading language). <\/span> Survey-based research suggests that ordinary people\u2019s understanding of delegations do not typically include significance limitations.34<\/a><\/sup>Walters, supra<\/em> note 31, at 534\u201335 (arguing that evidence for congressional preferences supporting a MQD are mixed at best, and almost certainly evolving); see also <\/em>Kevin Tobia, et al., Major Questions, Common Sense? <\/em>97 S. Cal. L. Rev.<\/span> __, __ (forthcoming 2024) (draft at 49\u201350) (finding that vast majority of ordinary people, contrary to Barrett\u2019s argument, did not find major, or significant, actions outside broad, but clear, delegations). <\/span> Congressional drafters and agency counsel also likely understand broad language in a statute to delegate \u201cwide authority\u201d to agency administrators.35<\/a><\/sup>Levin, supra<\/em> note 30, at 942. <\/span><\/p>\n

That said, the MQD is here to stay.36<\/a><\/sup>As of writing, the Court has yet to analyze a major questions doctrine argument and find that the statute raised no major question. However, similar arguments were made in Massachusetts v. EPA <\/em>in arguing that whether greenhouse gases qualified as a regulable Clean Air Act \u201cair pollutant\u201d raised a major question. 549 U.S. 497, 512 (2007) (noting EPA\u2019s position that \u201cimposing limitations on greenhouse gases would have even greater economic and political repercussions than regulating tobacco\u201d). The Court\u2019s majority opinion assessed neither significance nor novelty but reasoned simply that greenhouse gases \u201cfit well within the Clean Air Act\u2019s capacious definition of \u2018air pollutant.\u2019\u201d Id.<\/em> at 532. <\/span> Its inclusion of newness as a factor that could make an issue of agency authority a \u201cmajor question\u201d is obviously antagonistic to policy change and innovation. It constrains agencies from adapting policy in response to new problems, new advances in knowledge or technology, and unforeseen implementation problems.<\/p>\n

The MQD also can be understood as playing \u201cgotcha\u201d with Congress\u2014even when Congress could not have anticipated an MQD-type requirement\u2014by requiring it to have anticipated and spoken to the agency\u2019s specific policy solution to a modern problem. In the cases discussed above, the challenged policies seemed plainly within both the underlying statute\u2019s broad language as well as its purpose, as with the Occupational Safety and Health Act\u2019s instruction to protect workplace \u201chealth\u201d in the face of a global pandemic. (The Act was, of course, enacted in 1970, long before the creation of the MQD, so even if members of Congress anticipated its application in a global pandemic, they might have felt no call to include specific language). Again, such broad statutory language seems aimed at empowering implementing agencies to respond to specific issues Congress understands may arise later.37<\/a><\/sup>See e.g., <\/em>Levin, supra <\/em>note 30, at 962; West Virginia v. EPA, 597 U.S. 697, 756 (2022) (Kagan, J., dissenting) (\u201cA key reason Congress makes broad delegations . . . is so an agency can respond, appropriately and commensurately, to new and big problems\u201d); City of Arlington v. FCC, <\/em>569 U.S. 290, 296 (2013) (\u201cCongress knows to speak in . . . capacious terms when it wishes to enlarge[] agency discretion\u201d); Massachusetts<\/em>, 549 U.S at 532 (commenting that in reading the Clean Air Act term \u201cpollutant\u201d to encompass greenhouse gases, Congress knew that \u201cwithout regulatory flexibility, changing circumstances and scientific developments would soon render the Clean Air Act obsolete\u201d). <\/span> But in the MQD era, if the Court considers the issue to be \u201cmajor,\u201d and Congress has not specifically anticipated that particular issue in statutory language, one statute is not good enough for the Court\u2014Congress must legislate a second time. Courts effectively regulating the legislative process in this way seems problematic at any time, but it is particularly cynical in an era of legislative dysfunction.<\/p>\n

The MQD is not only anti-change; it is distinctly anti-regulatory. First, as Professors Deacon and Litman have argued, the Court\u2019s focus on \u201cnew\u201d agency actions essentially requires agencies to \u201cuse it [early on] or lose it.\u201d38<\/a><\/sup>Deacon & Litman, supra <\/em>note 13, at 1086. <\/span> Second, creating<\/em> regulation is particularly vulnerable as \u201cnew.\u201d Deregulation\u2014even dramatic deregulation\u2014seems less susceptible to being characterized as \u201cnew\u201d because in the case of deregulation, the agency has already plowed that subject-matter ground by regulating in the first place. Finally, the MQD burdens regulation through its legislative process impacts. Losers in a major questions doctrine case must return to Congress to obtain specific authorizing language. As if requiring Congress to legislate a second time weren\u2019t enough, MQD-required specific regulatory language will likely be especially difficult to enact since a specific regulatory proposal will be strongly opposed by regulated industry. As public choice theory predicts, regulated industry is likely to be better organized and better-funded than diffuse public beneficiaries, and thus more effective at defeating even legislation that significantly benefits the public.39<\/a><\/sup>William N. Eskridge, Jr., Politics Without Romance: Implications of Public Choice Theory for Statutory Interpretation<\/em>, 74 Va. L. Rev.<\/span> 275, 285 (1988) (\u201c[T]he market systematically yields too few laws that provide \u2018public goods\u2019 [including collective benefits and] too many laws that are \u2018rent-seeking\u2019\u201d); see also id. <\/em>at 288\u201389 (legislation is \u201cunlikely where there is little organized demand (distributed benefits), or where demand is met by strong opposition (because of concentrated costs)\u201d). <\/span> Broad, public-facing legislation has long been understood as vulnerable to this sort of behind-the-scenes resource imbalance; the MQD\u2019s requirement of specific language worsens it by further tilting the scales against regulatory legislation.<\/p>\n

The MQD is mainly focused on new agency actions that are economically or politically \u201csignificant,\u201d which might seem to limit its scope. But judicial opposition to change is not limited to the MQD. The Court has embedded antipathy to \u201cnew\u201d agency actions\u2014even those that might not be deemed so \u201csignificant\u201d\u2014through several other doctrinal moves.<\/p>\n

II. Earlier, Subtler Moves Towards an Anti-Change Regime: Requirements that Agencies Consider Reliance in Arbitrary and Capricious Review<\/span><\/p>\n

Under the foundational statute governing the federal administrative state, the Administrative Procedure Act, courts are to set aside agency action if they judge it to be \u201carbitrary, capricious, an abuse of discretion, or otherwise contrary to law.\u201d40<\/a><\/sup>Administrative Procedure Act \u00a7 7, 5 U.S.C. \u00a7 706(2)(A). <\/span> While reviewing courts have long demanded reasoned and rational decisions from agencies, the Court also had long indicated its comfort with, and even expectation of, administrative policy flexibility and change.41<\/a><\/sup>See infra <\/em>text accompanying notes 46\u201354 (discussing State Farm<\/em>).<\/span><\/p>\n

There were, of course, certain limits. In the enforcement setting, fair warning requirements rooted in due process precluded an agency from imposing liability on an entity based on newly announced regulatory requirements.42<\/a><\/sup>See e.g., <\/em>Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1329\u201330 (D.C. Cir. 1995).<\/span> The Court also previously suggested that agencies should not be able to act through adjudication (as opposed to rulemaking) if the result might create new liability for regulated entity actions taken in good-faith reliance on previous agency regulations, a similarly targeted notion of reliance.43<\/a><\/sup>In the 1970s, the Court discussed reliance on previous agency regulations as a defense to an agency enforcement action in U.S. v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655, 675 (1973), and (in dicta) good-faith reliance as a reason not to permit an agency to use adjudication to announce principles and impose new liability for past actions in NLRB v. Bell Aerospace Co., 416 U.S. 267, 295 (1974). Both cases were cited in Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 742 (1996), discussed infra <\/em>text accompanying notes 56\u201359.<\/span> Similarly, the Court indicated that Congress might itself create a safe harbor for regulated entities who might have relied on earlier versions of regulations.44<\/a><\/sup>Cf. <\/em>Perez v. Mortg. Bankers Ass\u2019n, 575 U.S. 92, 106 (2015) (noting that Congress often speaks directly to reliance interests by, for example, enacting safe harbor provisions in statutes for reliance on a range of agency documents or statements). <\/span> One might also infer that the presumption against retroactive applications of statutes incorporates reliance concerns, though such a presumption generally can be readily rebutted by language or some other indication that Congress meant for a statute to apply retroactively.45<\/a><\/sup>See e.g., <\/em>INS v. St. Cyr, <\/em>533 U.S. 289, 321\u00ac\u201323 (2001) (quoting Landgraf v. USI Film Prods., <\/em>511 U.S. 244, 270 (1994)) (applying the presumption against retroactivity based upon \u201cfamiliar considerations of fair notice, reasonable reliance, and settled expectations\u201d). <\/span> But crucially, none of this precluded agencies from changing policy or instituting new rules that would apply prospectively and broadly.<\/p>\n

For example, the iconic 1984 arbitrary and capricious review case, Motor Vehicles Manufacturers Association v. State Farm<\/em>,46<\/a><\/sup>463 U.S. 29 (1983). <\/span> involved regulatory policy change. In 1981, the Reagan Administration repealed a 1977 Carter-era rule that would have required all automotive manufacturers to install passive restraints (automatic seatbelts or airbags) on new cars by automotive model year 1984. The Court established that rule repeals were subject to arbitrary and capricious review,47<\/a><\/sup>Id. <\/em>at 41. <\/span> even though agency inaction might not require justification48<\/a><\/sup>Id. <\/em>at 30 (\u201cAn agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance\u201d). <\/span> or\u2014though the Court did not specifically state this\u2014might not even be subject to judicial review.49<\/a><\/sup>Cf. <\/em>Heckler v. Chaney, 470 U.S. 821, 832\u201333 (1985) (explaining that agency failure to act is presumptively unreviewable); Norton v. S. Utah Wilderness All., 542 U.S. 55, 64\u201365 (2004) (holding that agency failure to act would not be reviewable \u201caction\u201d under the APA unless it was discrete and subject to mandatory requirements).<\/span> The Court noted that an agency\u2019s earlier position should be seen as an \u201cinformed judgment\u201d on the best course of implementation, justifying arbitrary and capricious review of a rescission of that judgment.50<\/a><\/sup>State Farm<\/em>, 463 U.S. at 37, 41\u201342 (quoting Atchison, T. & S.F.R. Co. v. Wichita Bd. Of Trade, 412 U.S. 800, 807\u201308 (1973)). <\/span> The State Farm <\/em>Court\u2019s analysis identified the still-leading factors that compose arbitrary and capricious review, including whether the agency has: 1) considered relevant alternatives, 2) considered relevant factors under a statute (and not irrelevant ones), and 3) articulated a rational connection between the facts it found and the choices it made.51<\/a><\/sup>Id<\/em>. at 43\u201344, 48.<\/span><\/p>\n

The agency\u2019s earlier rule requiring passive restraints did, to some extent, shape the Court\u2019s review of the rescission in State Farm<\/em>. For example, the agency\u2019s requirement of airbags and automatic belts as the 1977 compliance options led the Court to unanimously set aside the 1981 agency action for failure to consider an airbags-only alternative.52<\/a><\/sup>Id.<\/em> at 51. A five-member majority of the Court also found flawed the agency\u2019s conclusion that passive restraints were not worth adopting because of the possibility that people might bypass them, undercutting anticipated safety benefits. That majority said it could not conclude the finding was the \u201cproduct of reasoned decisionmaking.\u201d Id.<\/em> at 52.<\/span> Yet, the Court emphasized that an agency must be given \u201cample latitude\u201d to adapt its rules and policies to changing circumstances,53<\/a><\/sup>Id. <\/em>at 42. <\/span> and notably, State Farm<\/em> did not mention either manufacturer or consumer reliance on the earlier rule as a consideration for the agency. To the contrary, Justice William Rehnquist, in dissent, famously suggested that the Court should have been even more generous with the agency\u2019s rescission decision, stating: \u201cA change in administration . . . is a perfectly reasonable basis for an executive agency\u2019s reappraisal of the costs and benefits of its programs and regulations [including public resistance and uncertainty], as long as the agency remains within the bounds established by Congress.\u201d54<\/a><\/sup>Id.<\/em> at 59. <\/span><\/p>\n

Beginning in the 1990s, however, the Court began to embed more anti-change seeds in its arbitrary and capricious rulings. It did so by requiring agencies changing policy to expressly consider reliance.55<\/a><\/sup>See generally <\/em>Randy J. Kozel, Precedent and Reliance,<\/em> 62 Emory L.J.<\/span> 1459, 1478\u201384 (2013) (discussing complexities inherent in judicial protection of reliance, including encouraging less-than-optimal levels of investment). <\/span> The Court first flagged reliance as a general concern for agency policy changes in its 1996 decision, Smiley v. Citibank (South Dakota), N.A.<\/em>56<\/a><\/sup>517 U.S. 735 (1996).<\/span> In a unanimous opinion authored by Justice Antonin Scalia, the Court upheld an agency interpretation under Chevron <\/em>deference and rejected challenges based on the agency\u2019s interpretive change since it found no meaningful change in official position.57<\/a><\/sup>Id.<\/em> at 742\u201345.<\/span> The Court reaffirmed that such interpretive change could be ordinary, but\u2014in dicta\u2014identified reliance as an additional factor for an agency to consider. The Court commented, \u201c[C]hange is not invalidating, since the whole point of Chevron <\/em>is to leave the discretion provided by the ambiguities of a statute with the implementing agency,\u201d58<\/a><\/sup>Id.<\/em> at 742.<\/span> but cautioned that a failure to \u201ctake account of legitimate reliance on prior interpretation\u201d could render a decision arbitrary or capricious.59<\/a><\/sup>Id.<\/em> <\/span><\/p>\n

In 2008, in FCC v. Fox Television Stations, Inc.<\/em>,60<\/a><\/sup>FCC v. Fox Television Stations, 556 U.S. 502, 514\u201316 (2009). <\/span> the Court, in a majority opinion by Justice Scalia, rejected an arbitrary and capricious challenge61<\/a><\/sup>5 U.S.C. \u00a7 706(2)(A) (Administrative Procedure Act provision requiring a court to set aside an agency decision if it is \u201carbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law\u201d); see<\/em> Motor Vehicle Mfrs. Ass\u2019n v. State Farm, <\/em>463 U.S. 37, 52 (1984).<\/span> to the FCC\u2019s decision to abandon a safe broadcasting harbor for fleeting expletives and to treat them instead as indecent. Although the Court\u2019s majority stated that an agency has flexibility to change policy, it laid out a more detailed explanatory requirement for the agency, and again affirmed that an agency cannot change policy without considering reliance. The Fox <\/em>Court stated that an agency changing its policy need not demonstrate that a new policy was \u201cbetter\u201d than the old, but it must display \u201cawareness\u201d that it was changing position and explain (if necessary) why it might disregard \u201cfacts and circumstances\u201d associated with the prior policy.62<\/a><\/sup>Fox Television Stations, <\/em>556 U.S. at 514\u201316. <\/span> The Court also stated that the agency\u2019s consideration must include \u201cserious reliance interests\u201d potentially engendered by the earlier policy.63<\/a><\/sup>Id.<\/em> at 515; see also id.<\/em> at 536 (Kennedy, J., concurring) (\u201cReliance interests in the prior policy may also have weight in the analysis.\u201d); Perez v. Mortg. Bankers Ass\u2019n, <\/em>575 U.S. 92, 106 (2015) (reaffirming position that agency failure to consider reliance in an interpretive rule might be arbitrary and capricious). <\/span><\/p>\n

In contrast to other requirements for agencies, the reliance requirement has been developed as free-floating judicial common law not specifically rooted in other legal sources or doctrines. The Court has not mentioned fair warning or fair notice concerns, for example. With respect to other relevant factors an agency must consider, the Court generally has felt compelled to anchor its analysis in the agency\u2019s underlying authorizing statute. For example, in Michigan v. EPA<\/em>,64<\/a><\/sup>576 U.S. 743 (2015). <\/span> the Court set aside an EPA decision as arbitrary and capricious because the agency failed to consider cost in an initial decision that mercury emissions from power plants required regulation.65<\/a><\/sup>See id<\/em>. at 760.<\/span> But it did so only after exhaustively explaining that cost should be understood as an implicitly required factor by the statute\u2019s terms \u201cappropriate and necessary.\u201d66<\/a><\/sup>Id.<\/em> at 752\u201353. <\/span> Although the Court has engaged in no such analysis for reliance, courts nonetheless have set aside new agency policy decisions for failure to consider reliance.67<\/a><\/sup>See, e.g., infra <\/em>notes 69\u201371 and accompanying text (discussing Department of Homeland Security v. Regents, 591 U.S. 1 (2020)); BNSF Ry. v. Fed. R.R. Admin., 105 F.4th 691, 701 (5th Cir. 2024) (setting aside agency decision in part because the \u201cFRA obviously failed to\u201d consider reliance). <\/span><\/p>\n

The Court has also been unclear about just which sorts of reliance interests an agency must consider, creating additional opportunities for the courts to nitpick agency policy changes. The cases discussed above implicate economic concerns, and the Court repeatedly mentioned the \u201csignificant [economic] reliance interest involved\u201d in setting aside, as inadequately reasoned, an agency\u2019s Fair Labor Standards Act regulation interpreting \u201csalesman\u201d to cover service advisors at auto dealerships in Encino Motorcars v. Navarro<\/em> in 2016.68<\/a><\/sup>See <\/em>Encino Motorcars v. Navarro, 579 U.S. 211, 222 (2016). <\/span> But in 2020, in Department of Homeland Security v. Regents of the University of California<\/em>,69<\/a><\/sup>591 U.S. 1 (2020).<\/span> the Court set aside as arbitrary and capricious the Department of Homeland Security\u2019s recission of the Deferred Action for Childhood Arrivals, or \u201cDreamers\u201d program, for failure to consider reliance interests in detail.70<\/a><\/sup>See id.<\/em> at 33\u201334. <\/span> The Court expanded the list of plausible reliance interests beyond purely economic interests\u2014though without ranking them, evaluating them, or anchoring them in the underlying statute\u2014to include personal decisions to take jobs, marry, purchase houses, or seek education, as well as money invested in employer training and governmental tax revenue.71<\/a><\/sup>See id. <\/em>at 31\u201332 (describing these various concerns as \u201cnoteworthy\u201d and supporting the analysis of alternatives). <\/em>For a thorough discussion of the interests motivating \u201creliance\u201d analysis in these cases, including an argument to limit them to certain individual, rather than state government interests, see<\/em> Haiyun Damon-Feng, Administrative Reliance, <\/em>73 Duke L.J.<\/span> 1743, 1812\u201316 (2024). <\/span> Such a list may be appealing as broadening legitimate reliance concerns beyond the purely economic. Irrespective of its potential appeal, however, courts have developed this requirement in an ad hoc, unpredictable fashion.<\/p>\n

Thus, in addition to offering an extensive explanation of why it sees the world differently, an agency seeking to change policy must address a difficult-to-anticipate set of reliance interests. These requirements represent a subtle new set of judicial roadblocks to agency policy changes.<\/p>\n

III. Change Itself as a Reason to Refuse Deference to Agency Interpretations Across the Board<\/span><\/p>\n

Prior to 2019, two of the three general doctrines governing judicial review of agency interpretations of law incorporated considerable scope for agency flexibility and policy change. The doctrine of Auer<\/em>72<\/a><\/sup>Auer v. Robbins, 519 U.S. 452 (1997).<\/span> or Seminole Rock73<\/a><\/sup><\/em>Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945).<\/span> <\/em>deference to an agency\u2019s interpretation of its own regulation left space for an agency to change its position. The Chevron <\/em>doctrine, <\/em>requiring presumptive deference to certain categories of agency interpretations of statutes, also supported flexible interpretation. Only the framework of the 1944 decision Skidmore v. Swift <\/em>74<\/a><\/sup>323 U.S. 134 (1944). <\/span> disfavored change by suggesting that other agency statutory interpretations would be more worthy of deference if they were consistently held over time.75<\/a><\/sup>See id. <\/em>at 140.<\/span> But in 2019, in Kisor v. Wilkie<\/em>,76<\/a><\/sup>588 U.S. 558 (2019).<\/span> the Court significantly modified Auer<\/em>, and of course in the 2024 decision of Loper Bright Enterprises v. Raimondo<\/em>,77<\/a><\/sup>144 S. Ct. 2244 (2024).<\/span> the Court overruled Chevron <\/em>and reinstated the judiciary as the primary decider of legal questions about an agency\u2019s authority.78<\/a><\/sup>See id. <\/em>at 2273.<\/span> Loper Bright <\/em>also modified Skidmore <\/em>deference to strengthen its anti-change tilt.79<\/a><\/sup>See id. <\/em>at 2272\u201373.<\/span> Thus, change in agency interpretations is now judicially disfavored across the board.<\/p>\n

A. Skidmore and <\/em>Chevron Prior to <\/em>Loper Bright<\/p>\n

Before Chevron<\/em>, the Court had long applied the so-called Skidmore<\/em> framework to decide whether deference to an agency interpretation might be warranted.80<\/a><\/sup>323 U.S. 134 (1944); see, e.g.<\/em>, Loper Bright, <\/em>144 S. Ct. at 2259\u201362. <\/span> In Skidmore, <\/em>the Court, in addressing a private employment dispute over pay, followed an agency interpretation of a statute announced in an agency \u201cbulletin.\u201d81<\/a><\/sup>See <\/em>Skidmore v. Swift, 323 U.S. 134, 138 (1944).<\/span> The open-ended Skidmore <\/em>framework largely left the deference question to a judge\u2019s discretion, though it expressed the notion that some agency interpretations might be especially deserving, and thus a worthy source of guidance to which a court might resort (or not).82<\/a><\/sup>See id. <\/em>at 140 (agency interpretations might constitute a body of \u201cexperience and informed judgment to which courts and litigants may properly resort for guidance\u201d). <\/span> The Skidmore <\/em>framework afforded \u201crespect\u201d to the agency\u2019s interpretation of the law based on the \u201cthoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.\u201d83<\/a><\/sup>Id<\/em>. <\/span> The preference for consistency, of course, disfavored change. Though the Skidmore <\/em>Court did not explain why it chose consistency as a criterion, conceivably a consistently-held interpretation might have been judged relatively well-considered at the start\u2014or perhaps frequent interpretive changes might be deemed disruptive.<\/p>\n

By contrast, under the stronger Chevron <\/em>deference framework (in which courts deferred to reasonable agency interpretations of ambiguous authorizing statutes), change was no bar to deference. In Chevron<\/em>,84<\/a><\/sup>Chevron v. Nat. Res. Def. Council, <\/em>467 U.S. 837 (1984). <\/span> the Court expressly rejected the notion that change would delegitimize an agency\u2019s legal interpretation, deferring to the agency\u2019s interpretation of a Clean Air Act term even though the agency had changed its interpretation over time. The Court explained: \u201cAn initial agency interpretation is not instantly carved in stone. On the contrary, the agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis.\u201d85<\/a><\/sup>Id. <\/em>at 863\u201364. <\/span> The Court reaffirmed this position\u2014and the agency\u2019s legitimate need to reconsider a policy\u2019s wisdom via reinterpretation of its authority\u2014in National Cable & Telecommunications Ass\u2019n v. Brand X<\/em>, where it stated that change in an agency interpretation, even if contrary to a Court of Appeals ruling, would not render the new agency interpretation ineligible for Chevron<\/em> deference.86<\/a><\/sup>Nat\u2019l Cable & Telecomm. Ass\u2019n v. Brand X Internet Servs., <\/em>545 U.S. 967, 981\u201382 (2005) (also quoting \u201cwisdom\u201d language from Chevron<\/em>).<\/span> The Brand X <\/em>Court reaffirmed the reasons given in Justice Rehnquist\u2019s State Farm <\/em>dissent, commenting that, at most, unexplained inconsistency might prompt a court to find a changed interpretation arbitrary and capricious.87<\/a><\/sup>See id. <\/em>at 982.<\/span><\/p>\n

B. Chevron\u2019s Abandonment in <\/em>Loper Bright and <\/em>Skidmore 2.0\u2019s Deepened Opposition to Change<\/em><\/p>\n

By the time Loper Bright <\/em>was argued in 2024, members of the Court had expressed significant concern regarding change in an agency\u2019s interpretation of its own authorizing statute. In a dissent to a 2022 certiorari denial in Buffington v. McDonough<\/em>,88<\/a><\/sup>143 S. Ct. 14 (2022).<\/span> Justice Neil Gorsuch argued that Chevron <\/em>invited executive officials to interpret the law aggressively\u2014and then, during a change in presidential administration, emboldened new officials to \u201cproceed in the opposite direction with equal zeal.\u201d89<\/a><\/sup>Id.<\/em> at 19 (Gorsuch, J., dissenting from denial of certiorari); see also <\/em>Baldwin v. United States, <\/em>140 S. Ct. 690, 694 (2020) (Thomas, J., dissenting from denial of certiorari) (arguing that Chevron <\/em>should be reconsidered and noting that it differed from historical practice by requiring deference even when an agency has changed its position). <\/span> Gorsuch suggested that Chevron <\/em>facilitated so much change that \u201cindividuals can never be sure of their legal rights and duties,\u201d potentially leaving them \u201ccaught in the whipsaw\u201d of rule changes.90<\/a><\/sup>Buffington, <\/em>143 S. Ct. at 21 (Gorsuch, J., dissenting from denial of certiorari). <\/span> Similarly, at the Loper Bright <\/em>oral argument, Justice Brett Kavanaugh expressed concern for the prospect that Chevron <\/em>deference might still apply when the \u201cagency changes position every four years,\u201d91<\/a><\/sup>Transcript of Oral Argument at 40, Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024) (No. 22-451).<\/span> a sharp contrast to Justice Rehnquist\u2019s endorsement of policy change initiated by new presidential administrations in State Farm<\/em>.92<\/a><\/sup>See supra <\/em>notes 53\u201354 and accompanying text; see generally <\/em>Deacon & Litman, supra <\/em>note 13 (discussing Court\u2019s attitudes towards presidential control of agency policy). <\/span><\/p>\n

In Loper Bright,<\/em> the Court overruled Chevron <\/em>and returned to Skidmore <\/em>deference for all agency statutory interpretations\u2014but in a way that significantly strengthened Skidmore<\/em>\u2019s anti-change tilt. Skidmore<\/em> already incorporated a preference for consistent agency interpretations of statutes so that the announcement of a changed position would apparently be less deserving of deference. The Loper Bright <\/em>Court endorsed this principle in what we might call Skidmore 2.0<\/em>.93<\/a><\/sup>See <\/em>Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2262 (2024).<\/span><\/p>\n

Loper Bright<\/em> strengthened Skidmore\u2019s <\/em>obstacles to change in two ways. First, the Court suggested that respect should be denied not only to changed agency interpretations, but to new<\/em> ones as well. Citing pre-New Deal cases, the Court characterized its historical approach as respectful to agency views when an agency interpretation was not just consistent but was issued \u201croughly contemporaneously\u201d with a statute\u2019s enactment.94<\/a><\/sup>See id<\/em>. at 2258. The Court cited three cases for this proposition, all decided in 1920 or earlier, even though Skidmore <\/em>itself was not decided until 1944.<\/span> It emphasized that in Skidmore 2.0<\/em>, courts should find especially useful \u201cinterpretations issued contemporaneously . . . and which have remained consistent over time.\u201d95<\/a><\/sup>Id<\/em>. at 2244. <\/span><\/p>\n

The Court did not explain its rationale for this additional limit on interpretations. Conceivably, privileging interpretations contemporaneous with enactment might recognize that an agency official had been involved in drafting or negotiating the statute, and thus might have particular knowledge of legislative context or congressional goals. Or, perhaps it reflects the possibility that Congress has not had an opportunity to respond to later interpretations, and thus cannot be assumed to have acquiesced. But whatever the justification, the Court\u2019s decision means less respect for a later-in-time agency interpretation. Such interpretations can, of course, be important to addressing new problems, new solutions, and new implementation issues that have emerged as a statute has been interpreted. For example, after the Court ruled in 2007 in Massachusetts v. EPA<\/em> that the core 1970 Clean Air Act term \u201cair pollutant\u201d clearly includes greenhouse gases,96<\/a><\/sup>Massachusetts v. EPA, 549 U.S. 497, 532 (2007).<\/span> the EPA confronted interpretive difficulties from the fact that greenhouse gases are often emitted in more \u201cvast quantities\u201d than other air pollutants regulated under the Clean Air Act.97<\/a><\/sup>See <\/em>Util. Air Regul. Grp. v. EPA, <\/em>573 U.S. 302, 320 (2014). The Court characterized greenhouse gases as \u201catypical pollutants.\u201d Id.<\/em> It disagreed with the EPA\u2019s proposed interpretive solution for the difficulty in favor of its own in one of the earliest antecedent rulings for the major questions doctrine. Id. <\/em>at 324 (stating that, absent clear language, it would be skeptical of EPA\u2019s interpretation as a discovery of an \u201cunheralded power\u201d in a \u201clong-extant statute\u201d). <\/span> Any statute may present a host of issues that Congress could not or did not specifically address.<\/p>\n

Second, the Loper Bright <\/em>Court set forth a statutory interpretation approach, at least in the setting of agency actions, that seems to leave little room for change over time, even when a statute is phrased broadly. The Court stated, \u201c[E]very statute\u2019s meaning is fixed at the time of enactment,\u201d expressly rejecting the notion that statutes could have gaps or ambiguities, which in past opinions has warranted deference to agency interpretations.98<\/a><\/sup>Loper Bright, <\/em>144 S. Ct. at 2266 (quoting Wis. Cent. Ltd. v. United States, 585 U.S. 274, 284 (2018)). <\/span> Over a dissent by Justice Elena Kagan, the majority denied that \u201cCongress\u2019s instructions\u201d could \u201crun out\u201d at a particular point in time99<\/a><\/sup>Id.<\/em> at 2266. <\/span> and insisted that every statute must have a \u201csingle, best meaning\u201d that simply awaits judicial detection.100<\/a><\/sup>Id.<\/em> (responding to Justice Kagan\u2019s dissent in Loper Bright<\/em>).<\/span> This focus on the time of enactment paves the way for future cases to adopt a particularly time-bound approach to statutes, whether it is by limiting application of a statute to circumstances mentioned in dictionaries at the time, or to those specifically contemplated by members of the enacting Congress. Consider, for example, the use of the term \u201cdrug\u201d in the Federal Food, Drug, and Cosmetic Act of 1938, defined to include \u201carticles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease . . . [and those] intended to affect the structure or any function of the body . . . .\u201d101<\/a><\/sup>21 U.S.C. \u00a7 321(g)(1)(B)\u2013(C).<\/span> Antihistamines for human use were not distributed widely until the 1940s; immunotherapy treatments for cancer were developed far more recently.102<\/a><\/sup>See <\/em>M. B. Emanuel, Histamine and the Antiallergic Antihistamines: A History of Their Discoveries, <\/em>29 Clin. & Exp. Allergy<\/span>, suppl. 3, 1, 8 (1999) (\u201cAntihistamines became widely used in the mid- to late[]1940s\u201d); Paula Dobosz & Tomasz Dzieci\u0105tkowski, The Intriguing History of Cancer Immunotherapy<\/em>, Frontiers of Immunology,<\/span> at 3 (2019) (building on sporadic earlier efforts, the field of immunotherapy \u201cre-emerged\u201d in the 1980s). <\/span> The statute, aimed at protecting the public from unsafe and ineffective drugs, was clearly meant to encompass such substances even if Congress did not, or could not, specifically anticipate them in 1938. The Court\u2019s approach is in tension with Congress\u2019s deliberate selection of capacious words in regulatory statutes.<\/p>\n

In contrast, in other settings with no agency interpretation on offer, the Court has acknowledged that a statute could be properly interpreted to encompass situations not specifically anticipated at the time of enactment. For example, in the 2018 opinion quoted in Loper Bright <\/em>for the proposition that a statute\u2019s meaning is \u201cfixed\u201d at enactment, Wisconsin Central Ltd. v. United States<\/em>,103<\/a><\/sup>585 U.S. 274 (2018); see Loper Bright, <\/em>144 S. Ct. at 2266 (\u201csingle, best meaning\u201d).<\/span> the Court held that the term \u201cmoney remuneration\u201d did not include stock options for purposes of the Railroad Retirement Tax Act of 1937.104<\/a><\/sup>See Wis. Cent.<\/em>, 585 U.S. at 284\u201385.<\/span> But it also acknowledged in dicta that \u201celectronic transfers of paychecks,\u201d although unknown in 1937, would still qualify as \u201cmoney remuneration.\u201d105<\/a><\/sup>See id.<\/em> at 284.<\/span> Justice Gorsuch wrote for the majority that although \u201cevery statute\u2019s meaning <\/em>is fixed at the time of enactment, new applications<\/em> may arise in light of changes in the world.\u201d106<\/a><\/sup>Id.<\/em> (emphasis in original). <\/span> Whether or not the concept of statutory \u201cmeaning\u201d can be convincingly distinguished from \u201capplications,\u201d107<\/a><\/sup>See, e.g.<\/em>, Levin, supra <\/em>note 30, at 937 (\u201cCourts must often decide whether a broad enabling statute applies to a particular agency action, and that inquiry can be difficult because the statute is, in that respect, <\/em>ambiguous\u201d) (emphasis in original).<\/span> the Wisconsin Central <\/em>opinion clearly contemplated that a general term can be appropriately interpreted over time to apply to circumstances the drafters did not specifically anticipate. Similarly, in the 2018 decision Bostock v. Clayton County<\/em>,108<\/a><\/sup>590 U.S. 644 (2020).<\/span> a majority of the Court held that the term \u201csex\u201d in the Civil Rights Act of 1964\u2019s employment discrimination provisions was properly interpreted to encompass sexual orientation and transgender status, since such discrimination is necessarily \u201cbased on sex,\u201d109<\/a><\/sup>See id. <\/em>at 660 (\u201cbased on sex\u201d); id.<\/em> at 682\u201383.<\/span> although the majority acknowledged that these particular outcomes \u201cmight not have [been] anticipated\u201d at the time.110<\/a><\/sup>Id.<\/em> at 653 (acknowledging that Act\u2019s drafters likely \u201cweren\u2019t thinking about many of the Act\u2019s consequences that have become apparent over the years\u201d but nonetheless finding sexual orientation and transgender status covered by the text). <\/span><\/p>\n

Perhaps the Loper Bright <\/em>Court simply forgot to mention that broad statutory terms implemented by agencies could properly apply to circumstances not specifically foreseen at the time of enactment. But it is also conceivable that the Court is laying the groundwork to extend some aspects of the MQD to a much larger class of cases, not just those raising \u201cmajor\u201d issues. Where a statute authorizes an agency to act, the Court could seek to limit a statute\u2019s scope of authorization just to circumstances specifically addressed in the text or specifically intended at the time of enactment. While the issue is beyond the scope of this essay, this sort of approach is in tension with textualism\u2019s commitments, since it may require looking beyond generally phrased statutory text to specific legislative intent, legislative history, or both.111<\/a><\/sup>See <\/em>Mendelson, supra <\/em>note 32, at 74 (noting textualists\u2019 strong opposition to such approaches). <\/span> And the Court might apply such an approach even to statutes enacted long before Loper Bright <\/em>was decided, irrespective of whether Congress could have anticipated this interpretive move. As with the MQD, such an interpretive approach could force Congress to legislate again to achieve a desired and appropriate policy response to new problems.<\/p>\n

C. Restricting <\/em>Auer Deference for Changed Agency Interpretations<\/em><\/p>\n

The Court\u2019s shift against change also has extended to its treatment of an agency interpretation of its own regulation. In the 1997 decision Auer v. Robbins<\/em>, the Court reaffirmed a longstanding doctrine announced in a 1945 case, Bowles v. Seminole Rock<\/em>, that an agency\u2019s interpretation of its own rules should be accepted as \u201ccontrolling unless \u2018plainly erroneous or inconsistent with the regulation.\u2019\u201d112<\/a><\/sup>See <\/em>Auer v. Robbins, 519 U.S. 452, 461 (1997) (quoting Robertson v. Methow Valley Citizens Council, <\/em>490 U.S. 332, 359 (1989)) (cleaned up); see also <\/em>Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945) (same).<\/span> In Auer <\/em>and in a 2007 decision, Long Island Care at Home Ltd. v. Coke<\/em>, the Court held that Auer<\/em> deference was available for interpretations both in internal memoranda and amicus briefs as long as they created no \u201cunfair surprise\u201d and were not post hoc rationalizations.113<\/a><\/sup>See Auer<\/em>, 519 U.S. at 461 (deferring to interpretation in amicus briefs that was not a post hoc rationalization); Long Island Care at Home Ltd. v. Coke, 551 U.S. 158, 170\u201371 (2007) (deferring to agency interpretation set forth in advisory memorandum and noting the interpretation created no unfair surprise); see also Auer<\/em>, 519 U.S. at 461 (a deferral to an interpretation in amicus briefs, not a post hoc rationalization). <\/span> In Long Island Care<\/em>, the Court specifically held that a change in an agency\u2019s interpretation would be no reason to deny deference,114<\/a><\/sup>Long Island Care,<\/em> 551 U.S. at 171 (deferring to interpretation with which the agency had \u201cstruggled\u201d for years). <\/span> implying that generalized reliance on previous positions would not bar an agency from adopting a new interpretation. The Court did not amplify the meaning of the sort of \u201cunfair surprise\u201d that would be a reason to deny deference, but did suggest that the use of notice and comment rulemaking to change a policy would be sufficient to eliminate any unfairness.115<\/a><\/sup>See id. <\/em><\/span> Again, the Court\u2019s concern seemed limited to the case in which a party faced liability based on a new agency interpretation, something akin to a lack of fair warning required by due process.116<\/a><\/sup>See, e.g.<\/em>, Christopher v. SmithKline Beecham Corp.<\/em>, 567 U.S. 142, 155\u201356 (2012) (analogizing potential \u201cmassive liability\u201d for pre-interpretation conduct to a lack of fair warning). <\/span><\/p>\n

But in Kisor v. Wilkie<\/em>,117<\/a><\/sup>588 U.S. 558 (2019).<\/span> the Court more clearly ruled a far larger class of changed interpretations unworthy of deference. Kisor <\/em>reaffirmed that an agency interpretation of its rule would not warrant Auer <\/em>deference if it created \u201cunfair surprise,\u201d but equated that surprise to the \u201cdisruption of expectations [that] may occur when an agency substitutes one view of a rule for another.\u201d118<\/a><\/sup>Id.<\/em> at 2418. <\/span> The Court added that such disqualifying \u201cupending of reliance\u201d might happen\u2014even if an agency had not previously plowed the interpretive ground\u2014if the agency, through its interpretation, sought to address \u201clongstanding conduct that the agency had never before addressed.\u201d119<\/a><\/sup>Id<\/em>.<\/span> If the Court follows through and applies this language as written, it would seem to cover most newly announced agency interpretations of rules, making them ineligible for deference.<\/p>\n

Moreover, if this expansive notion of \u201cupending reliance\u201d is extended to other areas in which the Court has decided reliance is relevant, such as in arbitrary and capricious review or review of changed agency interpretations of statutes, it would further impede agency efforts to respond to new problems, technologies, or democratic policy preferences.<\/p>\n

IV. Anti-Change Statutory Interpretation Rules that Impede Effective Regulatory Legislation<\/span><\/p>\n

Finally, the Court seems to be developing interpretive approaches that would limit the scope and effectiveness of regulatory legislation. A handful of anti-change substantive interpretive canons are already in use, most notably the so-called common law canon, stating that \u201cstatutes in derogation of the common law are to be strictly construed.\u201d120<\/a><\/sup>See, e.g.<\/em>, Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts<\/span> 318\u201321 (2004) (discussing common law canon and related canon regarding the meaning of undefined terms). <\/span> The canon includes the notion that enacted words with a settled common law meaning take that \u201ccommon law soil\u201d along with them.121<\/a><\/sup>Id. <\/em><\/span> But statutes, of course, are often meant to respond to inadequacies of common law.122<\/a><\/sup>Cf. <\/em>Babbitt v. Sweet Home Chapter, <\/em>515 U.S. 687, 697 n.10 (1995) (arguing that canon should not apply because statute included a definition of the relevant term). <\/span> The common-law canon can thus blunt a statute\u2019s impact. For example, in United States v. Bestfoods<\/em>,123<\/a><\/sup>524 U.S. 51 (1998). <\/span> the Court narrowly interpreted the Comprehensive Environment, Response, Compensation, and Liability Act (CERCLA) in light of \u201cgeneral principle[s]\u201d of corporate law, which it characterized as common law.124<\/a><\/sup>See id. <\/em>at 61.<\/span> CERCLA imposes strict, joint and several, and retroactive liability for hazardous waste cleanup costs on those responsible for contamination, including facility \u201coperators.\u201d125<\/a><\/sup>See <\/em>42 U.S.C. \u00a7 9607 (liability provisions of CERCLA).<\/span> It was passed in response to environmental disasters, especially abandoned hazardous waste sites, that were not being adequately addressed by common law remedies.126<\/a><\/sup>Congress enacted the statute after environmental disasters at hazardous waste sites across the country. That included Love Canal in New York, which concerned the consequences of a 16-acre chemical waste disposal site that had been capped in the 1950s. The land was sold to the city, which built an elementary school on top; residences were also built nearby. The cap broke in the mid-1970s, causing widespread chemical contamination throughout the groundwater with carcinogens, mutagens, and fetotoxic and embryotoxic chemicals. Love Canal was evacuated and declared a national disaster in 1978. See generally <\/em>U.S. Gov\u2019t Accountability Off., CED-81-57, Report by the Comptroller General of the United States: Hazardous Waste Sites Pose Investigation, Evaluation, Scientific, and Legal Problems<\/span>, at 52\u201353 (1981) (describing the numerous hazardous waste sites as \u201cticking time bombs\u201d and summarizing Love Canal events). Commentary at the time explained some of the limits on common law remedies. See, e.g.<\/em>, William R. Ginsberg & Lois Weiss, Common Law Liability for Toxic Torts: A Phantom Remedy, <\/em>9 Hofstra L. Rev<\/span>. 859, 865 (1981) (\u201cvictims of hazardous waste disposal will be poorly served by the common law and the judicial process . . . federal legislation creating an administrative remedy should be enacted\u201d).<\/span> Guided by what it characterized as common-law restrictions on \u201cpiercing the corporate veil\u201d to impose legal responsibility on corporate shareholders, the Court nonetheless interpreted the statute to almost never impose liability on a corporate shareholder or parent company, even one with complete ownership of a polluting company, and thus the ability to control its operation and environmental impacts.127<\/a><\/sup>See Bestfoods<\/em>, 524 U.S. at 72 (finding parent company liability as \u201coperator\u201d to be appropriate only if parent\u2019s agent acts \u201calone\u201d and actions are \u201ceccentric under accepted norms of parental oversight\u201d). <\/span> Such an interpretive approach can be understood as undercutting a statute\u2019s effectiveness, impeding Congress from making meaningful change.<\/p>\n

Two of the doctrinal changes discussed above can be understood as adding to the Court\u2019s arsenal of anti-change interpretive rules. Besides serving as a roadblock to agency assertions of authority, the MQD hinders Congress from using clear, but broad, language to create regulatory programs that can effectively address problems arising over time. Meanwhile, the Loper Bright <\/em>Court\u2019s dicta that a statute\u2019s meaning is \u201cfixed at the time of enactment\u201d could hamper the application of many broadly-phrased statutes to later-arising issues, even when no \u201cmajor questions\u201d are implicated.<\/p>\n

Finally, the Court more recently alluded to a nascent \u201cprivate property\u201d interpretive rule in the 2023 decision of Sackett v. Environmental Protection Agency.<\/em>128<\/a><\/sup>598 U.S. 651 (2023); see id. <\/em>at 679. <\/span> In that case, a majority of the Court narrowly interpreted the scope of the central federal water pollution statute, the Clean Water Act. The Court held that the Clean Water Act\u2019s jurisdictional \u201cwaters of the United States\u201d language did not cover wetlands other than those with a continuous surface connection to traditionally navigable waters and their tributaries.129<\/a><\/sup>Id. <\/em>at 678\u201379 (wetlands must have a \u201ccontinuous surface connection\u201d with \u201cwaters of the United States,\u201d meaning a relatively permanent body of water connected to traditional interstate navigable waters). <\/span> It further stated that Congress would have to \u201cenact exceedingly clear language if it wishes to significantly alter the balance between federal and state power and the power of the Government over private property.\u201d130<\/a><\/sup>Id.<\/em> at 679. <\/span> While the Court\u2019s reference to the balance of federal and state power seemed to invoke its late-twentieth-century federalism canons,131<\/a><\/sup>See <\/em>Mendelson, supra<\/em> note 32, at 119\u201320 (summarizing twentieth-century rise of federalism canons). <\/span> an extra-clear statement rule to protect private property would be wholly new.132<\/a><\/sup>Sackett <\/em>quoted dicta in U.S. Forest Serv. v. Cowpasture River Pres. Ass\u2019n, 590 U.S. 604, 621\u201322 (2020), but that case concerned whether the U.S. Forest Service could authorize a pipeline under the Appalachian Trail (roughly speaking) or whether, instead, the Appalachian Trail was National Park Service land, in which case, by statute, no pipeline could be built there. Private property did not seem to be implicated. Sackett<\/em>, 598 U.S. at 679; see also<\/em> Ala. Ass\u2019n of Realtors v. Dep\u2019t of Health & Hum. Servs.<\/em>, 594 U.S. 758, 764 (2021) (also quoting Cowpasture<\/em>, though with reference to intrusion \u201cinto an area that is the particular domain of state law\u201d).<\/span> Virtually all federal regulation\u2014economic, environmental, safety, or health\u2014affects private property in the sense that it aims to improve some parties\u2019 well-being or wealth, and changes the way others spend their resources or use their assets. Thus, such an interpretive rule, if entrenched, could limit the application of a wide array of federal regulatory statutes, old and new, unless Congress is able to see into a crystal ball and address individual issues in a highly specific fashion. Ironically, given this seeding of a new anti-regulatory change canon, in adopting a narrow application of the Clean Water Act, the Court fractured longstanding practice by overruling the position of all eight post-enactment presidential administrations on the Clean Water Act\u2019s coverage.133<\/a><\/sup>See Sackett<\/em>, 598 U.S. at 720 (Kavanaugh, J., concurring). <\/span><\/p>\n

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

By requiring not just clear, but specific, statutory authorization language, the Court\u2019s major questions doctrine has unquestionably made it harder both for Congress and agencies to respond to significant modern problems. But in a far less visible way, numerous other doctrinal changes embody the Court\u2019s efforts to restrict the scope of modern government. The Court is instituting large and small doctrinal obstacles to legislative regimes that were designed to respond to entire categories of modern challenges such as environmental pollution, occupational health, product safety, and financial fraud. At the same time, the Court is also hampering agencies\u2014to which Congress has entrusted the implementation of particular programs\u2014from responding to new technical challenges and to evolving democratic preferences. The Court\u2019s lack of democratic accountability, as well as policy and technical expertise, make it a poor institution to impose these barriers. Nonetheless, through ongoing doctrinal changes, the Court is exercising its power to send both Congress and the agencies, time and time again, back to the drawing board, with damaging economic and social welfare consequences.<\/p>\n

\n

[*]<\/a> Joseph L. Sax Collegiate Professor of Law, University of Michigan Law School. <\/strong>Thanks to the Cook Fund at the University of Michigan Law School for research support and to Dan Deacon for valuable comments. Thank you as well to the staff of the Harvard Journal on Legislation for their excellent editing of this essay.<\/p>\n\n\n

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