The parties’ briefing in Loper Bright and Relentless^[1] has utterly ignored statutory sections—and one section in particular—that are crucial for understanding both why the government should lose these cases and, more importantly, why the Chevron doctrine^[2] cannot and should not survive in an era of textualism. The relevant statute—the Magnuson-Stevens Fishery Conservation and Management Act—superficially appears complex and hard to understand. Yet like many seemingly complex topics, the statute can be clearly explained in a way that emphasizes the fundamental features of the law (e.g., the scope of power delegated by the statute to the Executive Branch) and leaves out the minor details (e.g., the precise number of members on each of the “Regional Fishery Management Councils”). 

The first four sections of the statute are the most important,^[3] and among those, the very first section is paramount. That section has two parts. In subsection (a), Congress set forth the detailed “national standards” that were to control the fishery management plans to be promulgated under the statute. Subsection (b), however, is crucial to understanding the scope of administrative power under the Act. As originally enacted in 1976, Congress charged the Secretary of Commerce (a named respondent in both Loper Bright and Relentless) with developing “advisory guidelines,” which were to be based on the national standards set forth in the subsection (a) and would “assist” in developing fishery management plans.^[4]

Let’s stop right there. For anyone familiar with administrative law, the word “guidelines” is hugely significant. “Guidelines” simply lack the status of “rules,” and even back in the early 1990s, early Supreme Court precedent in the Chevron line of cases established that mere agency “guidelines,” such as those promulgated by the EEOC, were not deserving of any substantial deference under the Chevron doctrine.^[5]

Thus, for aficionados of administrative law, the original version of the first section of the statute was pretty clear: Congress wanted the principles it wrote in subsection (a) to control the regulatory scheme, and it conferred on the Secretary of Commerce power much more limited than a standard rulemaking delegation commonly seen in many (but not all) administrative statutes. Yet Congress wasn’t done. In 1983, Congress went back to amend that first section of the statute to add the parenthetical “(which shall not have the force and effect of law)” directly after the grant of secretarial authority to write “advisory guidelines.”^[6] Thus, the full section now reads: “(b) Guidelines. The Secretary shall establish advisory guidelines (which shall not have the force and effect of law), based on the national standards, to assist in the development of fishery management plans.”^[7] Remember that this is not some out-of-way buried provision in the statute. It’s in the very first section.

If a skeptic could harbor doubt about the meaning and importance of the 1983 amendment to the first section of the statute, the legislative history confirms exactly what the plain text conveys. The House Report explains that the amendment “clarifies” that the secretarial guidelines “shall not have the force and effect of law” and that the underlying intent of the House Committee was “that the National Standards themselves [the standards set forth in subsection (a) of the statute’s first section], and not the interpretation of such standards as contained in the guidelines, are the basis upon which the adequacy of any particular FMP [Fishery Management Plan] is to be judged.”^[8] Similarly, the Senate Report states that the amendment “clarifies the fact that the fishery management plan development guidelines prepared by the Secretary of Commerce do not have the force of law” and “are only intended to be advisory in nature.”^[9] Thus, if there had been any doubt before the amendment, there was no doubt afterwards that one of Congress’s overarching goals in the very first section of the statute was to deny the Secretary of Commerce a muscular administrative power to fill in the statute with administrative pronouncements having “the force and effect of law.” 

How then is it possible that the Department of Commerce in these cases received Chevron deference given that the modern caselaw on Chevron—in particular, United States v. Mead^[10]—requires as a precondition for Chevron that an agency have the power to “speak with the force of law”?^[11] The answer to that question is not in other sections of the statute. Those sections confirm that Congress wanted to constrain, not aggrandize, the powers of the Secretary in this statute. The best answer for why the lower courts granted Chevron deference in these cases is that the entire string of Chevron caselaw distracts courts from what should be the most fundamental inquiry in any administrative law case: How much power did Congress delegate to the agency? 

If that question is asked, the correct answer with respect to this statute is: not a lot. In the statute’s first section, Congress expressly denied the Department of Commerce the relatively standard administrative power to write rules filling in the gaps in the statute. In other words, the Department of Commerce does not have the sort of rulemaking power that the EPA was given in the Clean Air Act and that was expressly exercised in writing the regulations sustained in Chevron. 

The other sections of the statute don’t make up for that deficiency in administrative power. The second section of the statute creates the “Regional Fishery Management Councils,” which are the regional administrative bodies that draft fishery management plans. The most important lesson from this statutory section is that a majority of the voting members on each of the regional councils are appointed by the Secretary of Commerce^[12] and thus are “inferior Officers” for purposes of the Constitution’s Appointments Clause.^[13] Constitutional inferior officers cannot be vested with significant discretionary powers—such as the power to speak with the force of law in filling details of a statutory scheme—unless that discretionary power is supervised by a principal officer such as the Secretary of Commerce.^[14] In addition, several of the voting members of the councils are state officials designated by state governors. The ability of those officials to wield substantial federal power is at best questionable, and they certainly can’t wield unsupervised federal executive power. 

The third section of the statute (entitled “Contents of fishery management plans”) gives the regional councils the power to develop fishery management plans, specifies what the plans should contain,^[15] and then authorizes the councils to write “[p]roposed regulations” for “implementing” their fishery management plans.^[16]

The fourth section (“Action by Secretary”) details the Secretary of Commerce’s functions in reviewing the councils’ proposed plans and the proposed regulations to implement their plans. Here again, the striking feature of the statute is the degree to which the statute limits the authority of the Secretary. In reviewing a fishery management plan, the Secretary has power to reject the proposed plan only if it is inconsistent with statutory law.^[17] Similarly, in reviewing a set of proposed regulations to implement a proposed fishery management plan, the Secretary is limited to determining whether the regulations are consistent with the proposed plan and statutory law.^[18]

So where is the general discretionary power to speak with the force of law—a power necessary to qualify for Chevron deference according to the Supreme Court in Mead? Surely, it is not in the Secretary. The first section of the statute denies the Secretary that power, and the fourth section of the statute grants the Secretary only a very limited role in reviewing any regulations proposed by regional councils. And just as surely it is not in the regional councils. They could not constitutionally be vested with a general discretionary power to fill in the details of the statutory framework without any supervision by a principal officer, and the restrictions on the Secretary’s reviewing powers in the fourth section of the statute make it clear that the Secretary does not have much supervision over the regional councils. The limited power of the Secretary’s supervisory powers requires limited power in the councils. 

The councils do have powers, under the statute’s third section, to include in their “fishery management plans” measures that are “necessary and appropriate” for the conservation and management of fisheries,^[19] but for three reasons, it would be a mistake to read those powers as equivalent to the sort of rulemaking powers conferred by statute on other agencies.^[20] First of all, the “necessary and appropriate” language is only in the statutory subsections governing the contents of councils’ “fishery management plans”; it’s not part of the separate statutory subsection conferring power on the councils to propose regulations. Second, as previously mentioned, the Secretary’s review powers in the fourth section of the statute are so heavily constricted that, if the councils did have general powers to issue regulations that do not contradict clear statutory meanings, then that power would be a power not supervised by a principal officer. 

Third and finally, there is a general and sensible canon of statutory construction that “Congress “does not … hide elephants in mouseholes.”^[21] In this fishery management statute, there is an elephant in the room and it’s not hidden at all: It’s the significant and somewhat unusual restriction on the Secretary’s power in the first section of the statute—limiting the Secretary to writing “advisory guidelines” only, with those guidelines “not hav[ing] the force and effect of law.”^[22] Interpreting the councils’ powers in the third section of the statute to trump the express limit in the first section would be worse than finding an elephant in a mousehole. It would be finding a counter-elephant—one that completely undid the principle set forth at the beginning of the statute—and it would have to be found lurking in a mousehole’s mousehole—the fishery management powers (not even the rulemaking powers) belonging to a decentralized set of regional administrative subordinates to the Secretary of Commerce. 

The Chevron case law, however, tends to lead courts away from any such rigorous assessment of the scope of delegated agency power. Instead, lower courts following Chevron and Mead would ask whether the agency has the power to speak with the force of law and would then follow Mead’s teachings that “authorizations to engage in the process of rulemaking”—particularly “notice-and-comment rulemaking”—are generally sufficient to give an agency the power to fill in statutory gaps and ambiguities and then claim Chevron deference in the courts. This particular statutory scheme did generate a notice-and-comment rulemaking, so the case law seems to instruct courts to tick a box and go forward giving the agency the tremendous power of Chevron to supplement the statutory language with binding rules. 

And here’s the fundamental problem with that approach: It substitutes intricate judge-made case law for statutory analysis. Indeed, it makes that substitution in two ways. First, it places Chevron and Mead as a supplement to, or perhaps even a contradiction to, the relatively clear command in the APA that reviewing courts must “decide all relevant questions of law.”^[23]

Second, the case law then imposes a confusing and distracting framework onto what should be a clear question, which is whether statutory law delegates sufficient power to the agency to support the agency’s action. Statutory delegations come in different sizes. Many agencies have general rulemaking powers that do allow them to define, through reasonable regulations, statutory terms and concepts left undefined by Congress. That’s the sort of power the EPA had, and exercised, in the Chevron case, and the Court was correct in holding that the EPA acted legally writing the rules at issue in that case. Some agencies, like the FCC, have even greater power—the power to write regulations that “modify” statutory law, even clear provisions in statutory law (although the modifications must be limited to “moderate” or “small-scale” changes).^[24] And some agencies, like the EEOC in certain circumstances, have less power—the power only to write advisory guidelines. 

The statutory scheme at issue in Loper Bright and Relentless delegates to the Department of Commerce much less power than was delegated to the EPA in the statute at issue in Chevron. The Department’s power is closer, though not quite identical, to the power of the EEOC to write guidelines. But the Loper Bright and Relentless cases should not be used as litigation vehicles merely to put another caveat or tweak on the overgrown and conflicting case law on Chevron. Instead, the consolidated litigation at the Supreme Court should be seen as a posterchild for the problems associated with grafting onto all cases in administrative law a wealth of complex judge-made case law that even its heyday was acknowledged to be imposing a “fictional, presumed intent” on all administrative statutes.^[25] Such judge-made doctrine is like a parallel universe coexisting uneasily with an approach that focuses exclusively on statutory law. Sometimes, as in Chevron itself, the two approaches produce the same results (with, of course, radically different reasoning). In other cases, the two approaches diverge so radically that they will support quite different results. Fundamentally, however, the judge-made doctrine is fundamentally at war with a textualist approach to statutory interpretation.^[26]In our more textualist era of statutory interpretation, such a doctrine can serve only to cause confusion. It should not survive.

John F. Duffy is the Samuel H. McCoy II Professor of Law at the University of Virginia School of Law. This short essay elaborates on a few points made in a separate article, which is part of a symposium on the Chevron doctrine. See John F. Duffy, Chevron, De Novo: Delegation, Not Deference, ___ G.M.U. L. Rev. ___ (2024) (forthcoming) (draft available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4690321).  

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^[1] The parties include all the petitioners and respondents in the two cases. Their briefs (available at https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/22-451.html and https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/22-1219.html) do not discuss the specific provisions that, as discussed herein, govern the scope of administrative power delegated to the Secretary of Commerce.  

^[2] See Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984).

^[3] 18 U.S.C. §§ 1851-1854. I will refer to these sections as first through fourth in the text because the lengthy U.S. Code citations tend to obscure the simple and intuitive structure of the statute.

^[4] Pub. L. 94–265, title III, § 301, 90 Stat. 331, 346 (1976). The Secretary has delegated her powers under the statute to National Marine Fisheries Service, which is part of the National Oceanic and Atmospheric Administration in the Department of Commerce. The discussion here will refer to the powers conferred by statute as secretarial powers. The delegation of those powers to other components within the Department of Commerce cannot aggrandize the powers.

^[5] EEOC v. Aramco, 499 U.S. 244, 257 (1991) (holding EEOC “guidelines” underserving of Chevron deference). 

^[6] P. L. 97-453, § 4, 96 Stat. 2484, 2482 (1983). 

^[7] 16 U.S.C. § 1851(b). 

^[8] H.R. Rep. 97-549, 97^th Cong., 2d Sess. at 24 (1982) (emphasis added).  

^[9] S. Rep. 97-519, 97^th Cong., 2d Sess. at 6 (1982).

^[10] 533 U.S. 218 (2001).

^[11] Id. at 229.

^[12] 16 U.S.C. 1852(a)(1) (granting the Secretary power to appoint a majority of the member of each council).  

^[13] U.S. Const. art II, sec. 2, cl. 2.

^[14] United States v. Arthrex, 141 S.Ct. 1970 (2021).

^[15] 16 U.S.C. § 1853(a) (“Required provisions”) & (b) (“Discretionary provisions”).

^[16] 16 U.S.C. 1853(c). 

^[17] See 16 U.S.C. § 1854(a)(1)(A) (limiting the Secretary’s review of a plan to determining “whether it is consistent with the national standards [which are set by § 1851(a)], the other provisions of this chapter, and any other applicable law”); § 1854(a)(3)(A) (requiring that, in disapproving any plan, the Secretary must specify “the applicable law with which the plan or amendment is inconsistent”). 

^[18] See 16 U.S.C. § 1854(b)(1) (limiting the Secretary’s review of proposed regulations plan to determining “determine whether they are consistent with the fishery management plan, plan amendment, this chapter and other applicable law”); § 1854(b)(1)(B) (requiring that, in disapproving any regulations, the Secretary is required to specify “in writing” the “inconsistencies” between the proposed regulations and statutory law or the proposed fishery management plan and to “provide recommendations on revisions that would make the proposed regulations consistent with the fishery management plan, plan amendment, this chapter, and other applicable law”).

^[19] 18 U.S.C. §§ 1853(a)(1)(A), (b)(3), & (b)(14). 

^[20] For example, the EPA’s rulemaking power in the Clean Air Act gives the agency the power “to prescribe such regulations as are necessary to carry out [its] functions under this Act.” Clean Air Act § 301(a)(1), 42 U.S.C. § 7601(a)(1). Similarly, FCC has a general rulemaking power to “make such rules and regulations … not inconsistent with this chapter, as may be necessary in execution of [the agency’s] functions.” 47 U.S.C. § 154(i).

^[21] Whitman v. American Trucking Association, 531 U.S. 457, 468 (2001).

^[22] 16 U.S.C. § 1851(b). 

^[23] 5 U.S.C. § 706. 

^[24] See MCI Telecommunications Corp. v. AT&T Co., 512 U.S. 218, 228-29 (1994) (holding a power to “modify” statutory law permits the agency to override even clear text statutory text, but only on small issues).

^[25] The Honorable Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 517.

^[26] See John F. Duffy, Administrative Common Law in Judicial Review, 77 Tex. L. Rev. 113 (1998) (critically assessing Chevron and other examples of judge-made common law in the statutory field of judicial review of administrative actions).