The headline result of Loper Bright Enterprise v. Raimando is that the Supreme Court has overturned Chevron v. NRDC and ended the practice of Chevron deference. While this is significant, count me among those who think the effects of the decision will be more modest than some portend. It may be that Loper Bright "places a tombstone on Chevron no one can miss," but the most important aspects of the decision lie in the weeds. As I suggested in February, the extent to which a given rule constrains agencies is more a function of what it does than how it is labeled.
The Chief's decision in Loper Bright reaffirms that judges must interpret statutes in the first instance and that courts are not obliged to follow an agency's interpretation of a statute unless that interpretation is convincing. In effect, a rule of deference is replaced with a rule of respect. That is, as was the case prior to Chevron, reviewing courts are required to listen to what agencies have to say, but must still exercise their independent judgment on what a statute means. As the Chief puts it repeatedly, the rule is that courts are to give agencies "due respect" rather than deference.
As the Chief Justice explains, the basic understanding, as explained by Alexander Hamilton in Federalist 78, was that "'the interpretation of the laws' would be 'the proper and peculiar province of the courts." At the same time, "the Court also recognized from the outset . . . that exercising independent judgment often included according due respect to Executive Branch interpretations of federal statutes." This formulation—the exercise of independent judgment while according "due respect" to the executive branch is repeated throughout the opinion.
