- _Chevron_ Deference (RIP): Before SCOTUS overruled it, the _Chevron_ Deference doctrine came into play whenever an agency interpreted a statute capable of multiple constructions. The only catch was that the agency’s interpretation had to be “permissible”—a low bar indeed. In those cases, the agency’s interpretation was _controlling_. The courts _had no choice_ but to accept it. This ended with _Loper Bright_. Now, courts are no longer _required_ to accept an agency’s interpretation, although they certainly _may_ if they wish. (And honestly, they probably will most of the time—_see Skidmore_ below.)
- _Skidmore_ Deference: This doctrine survives. It entails a case-by-case approach in which the agency’s interpretations aren’t _controlling_, but they receive significant weight. The idea is that the agency is staffed with professionals who provide a body of knowledge worth considering.
- Major Questions Doctrine: This doctrine says that certain questions are just too important to casually turn over to bureaucrats. Congress bears the constitutional responsibility for deciding these questions, so they can’t be delegated to agencies unless Congress makes a _clear_ _statement_ to that effect. As Justice Scalia said, Congress does not “hide elephants in mouseholes.” (Aside: There’s a similar doctrine called the “Political Question Doctrine” that says the courts lack jurisdiction to decide disputes involving political questions that must be resolved by Congress or the Executive. Keep your eyes peeled for this one.)
Deciding what issues are “major questions” involves many factors: economic impact, political impact, and whatever else things the courts find important. This is a case-by-case determination; there’s no “bright-line rule.”
A couple of idle observations:
- Until recently, the Major Questions Doctrine provided an important safeguard against runaway use of _Chevron_ Deference by limiting the universe of issues that agencies could claim to govern. If an issue was important enough, and Congress hadn’t _clearly_ delegated authority to the agency, then no deference was necessary because the agency lacked authority to regulate the issue in the first place.
- It remains to be seen how courts will use the Major Questions Doctrine now that _Chevron_ is dead. I think they’ll continue to use it to limit what agencies may regulate—and who knows, without the counterweight of _Chevron_, they may even use it more often. I admit I’m just guessing here, but the current zeitgeist seems to be that we must tame a sprawling administrative state.
- Why this matters to RFK: Before _Loper Bright_, agencies could get away with a lot more because the courts had to buy whatever the agencies were selling. This was great if you were in power, but distressing if you weren’t. It also opened the door to a lot of regulatory instability as new administrations could swing policy from one pole to the other. But now that _Chevron_ is gone, the courts have more power to temper agency actions. The Major Questions Doctrine is part of their toolkit.
- My take on Dr. Gounder’s comments (tell me if you disagree): As I understand Dr. Gounder’s comments, she’s concerned that purging “career bureaucrats” (her words) would cause problems—and might even hinder RFK’s own agenda. As she sees it, RFK needs these insiders to get things done.
If I may mind-read a little, I suspect that she fears the agencies may not have the power that RFK needs to get his agenda done. She suggests that RFK’s plan may entail “major questions” that Congress hasn’t clearly delegated. Therefore, she believes that RFK must retain the existing personnel who know how to work the system.
I also expect that special interests (pharma, junk-food purveyors, etc.) will challenge RFK’s every move. Among their arguments will be that RFK is using administrative agencies to govern “major questions” without clear Congressional authority.
- _Auer_ Deference: This appears to survive _Loper Bright_; we’ll see what the courts say, but I expect it to continue pretty much unimpeded. Sometimes, an agency’s _own regulation_ (as opposed to an underlying statute) leaves room for interpretation. Because the agency itself wrote the regulation (and not Congress), _Auer_ Deference requires courts to give the agency’s interpretation of its own regs _controlling_ weight.
This struck me as important because RFK could argue that his anticipated policy changes aren’t interpreting _statutes_, but the agencies’ own regulations. He may also invoke the Political Question Doctrine and argue that these are political questions that the courts lack jurisdiction to resolve.