Professor Marshall Breger joined an amicus brief of Administrative Law Scholars in Loper Bright Enterprises v Raimando No. 22-451 (2023) being argued in the Supreme Court of the United States this Fall. The brief was filed on September 22. The issue presented is whether the iconic Chevron doctrine should be overturned. Chevron, of course, concerns the amount of deference (if any) courts owe agency interpretations of statutes they administer.

The brief argues that Chevron properly construed is good law. It argues that Chevron is not a doctrine for resolving statutory ambiguities as such, but rather for identifying and policing the boundaries of Congressional delegations. It provides a rubric to recognize when (and to what extent) Congress has granted an agency authority to decide a matter left unresolved by the statutes, usually because the way in which the statues applies to concrete situations requires elaboration through agency experience or some aspect of the statutes requires “the formulation of subsidiary administrative policy within the prescribed statutory framework.

Chevron thus requires far more than mere ambiguity–it requires statutory indeterminacy, a gap “left…unresolved” even after a court has applied all its “traditional tools of statutory construction.” In other words, Chevron addresses, not instances where statutory text might be judicially construed to have this meaning or that, but where, using these “traditional tools” the court cannot confidently arrive at a judicial construction at all, either because competing interpretations are equally plausible or because identifying a governing interpretation requires policy assessments that courts ought not to make.

Other signatures to the administrative law amicus brief are:

• William D. Araiza, Stanley A. August Professor of Law, Brooklyn Law School
• William W. Buzbee, Edward and Carole Walter Professor of Law & Director of the Environmental Law & Policy Program, Georgetown University Law Center
• Samuel Estreicher, Dwight D. Opperman Professor of Law & Director of the Institute of Judicial Ad-ministration, New York University School of Law
• David L. Noll, Associate Dean for Faculty Research and Development & Professor of Law, Rutgers Law School
• Andrew Popper, Professor of Law, American University, Washington College of Law
• Sidney A. Shapiro, Frank U. Fletcher Chair in Administrative Law, Professor of Law, & Vice-President of the Center for Progressive Reform, Wake Forest University School of Law
• Peter L. Strauss, Betts Professor of Law Emeritus, Columbia Law School

Breger teaches and writes in the field of administrative law. He has served as Solicitor of Labor a the Department of Labor and as Chair of the Administrative Conference of the United States. His most recent administrative law article is Short Circuiting the Administrative Judiciary: A response to Linda Jellum, 101 Texas Law Review online (2023).

A copy of the brief is available here.