The Supreme Court decision in Loper Bright, which overruled the Chevron precedent that courts will defer to reasonable agency interpretations of law, has caused no small measure of controversy. Indeed, the decision has been the subject of political invective along party political lines, with Democrats in particular criticizing the decision.

In this note we cannot hope to quell such criticisms, but we can offer some perspective. The issue of whether, and if so to what extent, courts should defer to agency interpretations of law is something that has been wrestled with throughout the English-speaking legal world. When seen in comparative light, the Loper Bright decision takes on a more orthodox, less controversial hue for two reasons. First, its restatement of the law to the effect that legal questions are properly resolved by the courts aligns closely with the basic rule in most comparable jurisdictions. Second, even in light of this basic rule, there remains scope for meaningful deference.

The Basic Rule: Legal issues are for the courts

The majority opinion of the Court in Loper Bright, given by Chief Justice Roberts, emphasises the orthodoxy of the basic rule that legal issues are for the courts to authoritatively determine. The opinion does this through an historical analysis. It records that at the Founding, the Framers of the Constitution “envisioned that the final ‘interpretation of the laws’ would be ‘the proper and peculiar province of the courts.'” (7). This approach was confirmed in the New Deal era, when it was understood that the “supremacy of law demands that there shall be opportunity to have some court decide whether an erroneous rule of law was applied.” (10) The Administrative Procedure Act did not disturb this basic rule. Instead, it “codifie[d] for agency cases the unremarkable, yet elemental proposition reflected by judicial practice dating back to Marbury: that courts decide legal questions by applying their own judgment.” (14) All of this underpins the Court’s conclusion that “Chevron’s presumption [of deference] is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.” (23)

We have no special claim to assess these arguments from within the United States legal system. But from a comparative perspective, the idea that it is for courts to determine legal questions rings incontrovertible. That it is for court and not regulators to determine legal questions is the basic legal rule in jurisdictions such as Australia, New Zealand and the United Kingdom. It is also the subject of broad cross-ideological consensus, which is what allows us to speak with one voice on this issue despite our own substantial disagreements about the normative merits of the administrative state. Take, for example, the following statement of the United Kingdom’s House of Lords, in a case decided contemporaneously with Chevron:  

The [administrative] decision-maker must understand correctly the law that regulates his [or her] decision-making power and must give effect to it. Whether he [or she] has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable. (410)

This basic rule clearly applies to bodies other than courts, including regulators and other delegated decision-makers (see R v. Hull University Visitor, ex p Page [1993] AC 682) and has rightly been described as the “dominant approach to judicial review for error of law.” (695)

New Zealand’s Court of Appeal has adopted the same basic rule in Bulk Gas Users Group v. Attorney-General [1983] NZLR 129, although in typical New Zealand fashion the point is made in a less forthright manner:

…Courts of general jurisdiction will be slow to conclude that power to decide a question of law conclusively has been conferred on a statutory authority or tribunal. … and if there is any doubt as to what that question is, this is a matter for courts of law to resolve in fulfilment of their constitutional role … (133)

Australia shares the same legal traditions as New Zealand and the United Kingdom, but its constitutional and administrative law development has been more influenced by United States theory and practice. That influence may be the reason that the high Court of Australia directly considered the Chevron doctrine of deference in Corporation of the City of Enfield v. Development Assessment Commission (1999) 199 CLR 135. The plurality in that case maintained the usual distinction between law and merits, and preferred to rest its view on the older proposition in Marbury v. Madison that “that an essential characteristic of the judicature is that it declares and enforces the law which determines the limits of power conferred by statute on administrative decision-makers.” (153) Maintaining the role of the courts as authoritative interpreters of legislation was taken as the “fundamental consideration in this field of discourse.”(153) 

The outlier in this survey is Canada, where the current approach requires courts to defer to administrative interpretations of law in most cases, unless the legislation enabling the decision-maker signals a non-deferential approach. While the Supreme Court of Canada recognizes that sometimes only one interpretation of a statutory provision is tenable, this is seen as a conclusion that might be reached in the course of deferential review, not a preliminary step as it was under Chevron. This is not a copy of the Chevron approach, then, but a funhouse-mirror version, requiring its steps to be taken in reverse order.   

Since the adoption of the Chevron doctrine in 1984, then, the United States has been an outlier. By reversing it, Chief Justice Roberts’ opinion aligns neatly with the prevailing position in the Anglo-Commonwealth. To re-emphasize the key point we are making, in comparative perspective the rule that courts authoritatively determine the law is not at all controversial; it is thoroughly pedestrian. And in the 40 years since the United States parted ways with these other jurisdictions, all we can say is that the sky has not fallen on the administrative state in the UK and elsewhere. To some extent, this may be because these jurisdictions’ approach, like the one set out in Loper Bright, allows for occasional residual deference. Mostly, though, this is because the administrative state can live with judicial supervision. 

Residual Scope for Deference 

Of course, Loper Bright does not completely remove the scope for some form of deference to regulator’s interpretations of law. Chief Justice Roberts’ opinion makes clear that a kind of interpretative (rather than presumptive) deference can still apply:

… the statute’s meaning may well be that the agency is authorized to exercise a degree of discretion. Congress has often enacted such statutes. … When the best reading of a statute is that it delegates discretionary authority to an agency, the role of the reviewing court under the APA is, as always, to independently interpret the statute and effectuate the will of Congress subject to constitutional limits. The court fulfills that role by recognizing constitutional delegations… (17)

Perhaps, as Adrian Vermeule has argued, this amounts to a reframing rather than an elimination of judicial deference. Again, a comparative perspective can offer insights here, suggesting that this residual, interpretative deference can be significant in some cases. 

Perhaps the best-known example is the House of Lords decision in R v. Monopolies and Mergers Commission, ex p South Yorkshire Transport Ltd [1993] 1 WLR 23. The Monopolies and Mergers Commission was asked to investigate a bus company merger, but, pursuant to the Fair Trading Act 1973, could only do so if the acquisition affected “a substantial part of the United Kingdom.” The Commission, interpreting its own enabling statute, found the jurisdictional condition satisfied despite only a tiny percentage of the geography, economy and population of the United Kingdom being affected. The affected region did have, however, a disproportionate cultural and political significance, in the Commission’s view. 

On appeal to the House of Lords it was found that while usually points of law would be matters for the courts, in this case “the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational.” (32) And despite the fact that an economic regulator was taking unilateral decisions about cultural and political issues, the rationality of the Commission’s decision could not be impugned. The imposition of a jurisdictional condition was not taken as a legislative intention to limit the Commission’s scope of authority, in the Lords’ view. As such, the term “substantial” was best understood as an evaluative rather than a legal one, with application of that term in all the circumstances best left to the regulator. 

South Yorkshire Transport (and its New Zealand counterpart Unison Networks) should look familiar to those familiar with Chevron reasoning, despite the fact that it nominally starts from the proposition that courts rather than regulators interpret the law. For those interested in comparative analysis, a useful starting point is Paul Craig’s chapter in A Special Relationship? American Influences on Public Law in the UK (173). While the case is an outlier in UK law, it suggests that there remains scope for deference under the new Loper Bright standard of judicial interpretation. 

The Administrative State Will Survive

But even apart from this, the experience in the UK, Australia, and New Zealand suggests that Justice Kagan’s fear that Loper Bright will encourage “judicial hubris” (3) is unfounded. To the contrary, a robust judicial role on questions of law is quite compatible with a powerful administrative state. Whatever one thinks of this reconciliation as a normative matter, there can be little doubt that it has in fact occurred.

The UK executive, not counting devolved administrations and local authorities, consists of 24 ministerial departments and 20 non-ministerial ones, as well as 423 “other agencies and public bodies”. These departments and agencies deal with much the same issues those of the American executive branch are responsible for (and more besides), including the kinds of issues Justice Kagan highlights in her overview of “what a typical Chevron question looks like”―scientific issues and environmental ones, economic and technical ones too. In doing so, they generate between 1000 and 1500 statutory instruments―i.e. regulations, usually significant ones―every year, to say nothing of a myriad administrative decisions in individual cases. And they do so while operating, with the occasional exception of a South Yorkshire Transport-style case, under the non-deferential supervision of the judiciary, so far as the legality of their output is concerned.

This is why we question the rhetoric that the administrative state has suffered a mortal blow with the end of Chevron deference. The comparative evidence is that it will, in all likelihood, survive. So will questions about the role of law in the administrative state, the appropriate occasions and justifications for judicial deference, and the nature and limits of administrative competence. The ongoing project seeking answers to these questions in the US now benefits from a set of assumptions and legal principles shared throughout much of the English-speaking legal world. From our outsiders’ perspective, at least, this is the potential of Loper Bright and we look forward to it being realized. 

Leonid Sirota is an Associate Professor at the University of Reading, in the United Kingdom, and the founder of the Double Aspect Blog. Edward Willis is an Associate Professor at the University of Otago, New Zealand.