Chevron is dead, however deference may very well be alive. The majority in Loper Bright Enterprises v. Raimondo articulated no intelligible principle of deference other than tacit acknowledgement of Skidmore deference and potentially laying the path for de novo review. Nonetheless, some scholars have acknowledged that lower courts may function in fundamentally similar ways when reviewing agency statutory interpretations. While there is no longer a singular standard on when and how to defer to administrative agencies, federal courts struggling to cogently interpret the ruling may start leaning into deference by another name.

State courts, where attacks against Chevron are a lot older, may offer a prediction for how federal courts will behave. The arguments for administrative deference are somewhat more strained under most state constitutions than under the federal separation of powers doctrine. However, the rejection of deferential regimes nonetheless engenders a need for some sort of interpretive deference in lower state courts as the example in Michigan shows.

In 2008, in In Re: Complaint of Rovas Against SBC Michigan, the Michigan Supreme Court held that courts may grant “respectful consideration” to agencies, but “statutory interpretation is a question of law that this Court reviews de novo.” The opinion went further and completely rejected Chevron deference, which some lower courts had partially adopted at that point.

However, the language of Rovas has been read to be permissive of a significantly more deferential standard than has actually taken hold in Michigan courts. Several decisions have referenced the stronger language articulated in an 1879 U.S. Supreme Court case, United States v. Moore. The deference standard there provided that “[t]he construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration, and ought not to be overruled without cogent reasons.” Moore at 763. The Moore presumption was a weighty thumb on the scale in favor of deference to administrative agencies, unless there were cogent reasons to decide otherwise. While language from Moore is quoted in Rovas, the court interpreted the standard as not permissive of deference, writing that “‘Respectful consideration’ is not equivalent to any normative understanding of ‘deference.’”

Lower courts and the Michigan Supreme Court have since interpreted even Rovas and the language from Moore as creating a deference regime. As soon as 2014, in an unsigned opinion the Michigan Supreme Court interpreted the standard to mean that the court could not overrule an agency’s interpretation when there was “no … ‘cogent reasons’ to overrule it.” Younkin v. Zimmer at 3 (2014). The Michigan Court of Appeals in several decisions has interpreted the standard from Rovas to mean that they “will give respectful consideration to the [agency’s] construction of a statute that the [agency] is empowered to execute” and that the “Court will not overrule that construction absent cogent reasons.” In re Implementing Section 6w of 2016 PA 341 for Cloverland Elec. Coop. at 3 (2019); Brightmoore Gardens, LLC v. Marijuana Regul. Agency (2021). This two-part test functions like the Chevron two-step: so long as the interpretation does not openly contradict statutory text or legislative intent, courts are extremely deferential to the agency interpretation. Michigan continues to use the language of “respect” for rather than “deference” to agencies, but in practice this difference is only nominal.

I acknowledge that state and federal perspectives on deference are fairly different, and some of these differences make them hard to compare. Scholars have argued that there is less of a structural case for deference in state courts. On the other hand, state courts are extremely busy and may have even less ability to make the reasoned interpretation that de novo review requires. Further, the state constitutional balance generally tips closer towards non-delegation than the federal constitution, counselling on average a less deferential standard compared to the federal system. The latter factors may suggest that federal courts may be hungrier and better suited to administrative deference and more likely to experience a return of deferential regimes.

Michigan’s experience in the decade after rejecting Chevron deference provides some guidance for administrative lawyers gazing into the morass of litigation that is to come. First, when the highest court fails to give a clear articulation of the standard of administrative deference, lower courts may operationalize the standard in ways that were contradictory to the “original intent.” Rovas failed to give courts an actionable standard of deference. The lower courts then adopted a standard that created a strong presumption of “respect.” Loper Bright may suffer a similar fate. By just offering squishy guideposts, courts may just be predisposed to adopt agency interpretations, even when they are just giving Skidmore-type weight to the agency interpretation and not actual “deference.” Even more concerning to the critics of Chevron may be reinstatements of historical deference regimes, such as the standard articulated in Moore that provides a generous thumb on the scale for agencies.

Second, and similarly, Michigan’s experience shows how lower courts that do not have the ability to tailor their caseloads may adopt deference even when precedent counsels against it. Even in states, where the difficulty of interpreting statutes may be lower than those on the federal scale, Michigan judges choose to utilize a strained interpretation of precedent to allow for easier resolution of cases. Similarly federal courts may choose to employ deference by another name in order to survive the onslaught of the thousands of administrative challenges for regulation future and past that are doubtlessly being filed now.

Functional concerns illuminated many of the reasons for keeping Chevron deference alive. Administrative agency questions are getting more complicated, demand more expertise, and the administrative law docket of federal courts continues to expand rapidly, especially in the aftermath of Jarkesy and Corner Post. Failing to articulate a clear deference principle led to Michigan experiencing a regression to deference, and courts were comfortable stretching precedent to allow for extremely high “respect” for agencies. What happens to the federal courts in the absence of clear deference standards remains to be seen.

Neena Menon is a 2024 graduate of the University of Michigan Law School.