By mid-summer, Chevron deference as we know it may be history. The Supreme Court could reform or even eliminate its forty-year-old doctrine that federal courts should generally defer to an agency’s reasonable interpretation of an ambiguous statute.

　　How would the end of Chevron deference affect our constitutional institutions? It’s far too soon to know—and not just because the Supreme Court has yet to decide Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo. Even if the Court eventually reforms the Chevron framework or erases it outright, the decision’s full impact will not be seen clearly for months or years. Such was the case with Chevron itself: the Court’s decision was debated endlessly from the start, but its full effects would not be fully understood until decades later.

　　Still, it is not too soon to start thinking. Reforming Chevron along the lines suggested by some of the justices’ questions at oral argument would change the work of the courts. First, and most obviously, judges will need to work harder to interpret statutory text. This harder interpretive work, in turn, will place still greater weight on textualism itself—and on Congress’s own responsibility for crafting the texts in the first place. The post-Chevron era may also cause judges to think differently about the character of the administration. And if so, then the executive and legislative branches will have new reasons to change their own work, too.

　　This essay attempts to think through some possible second- and third-order effects of one of the most long-awaited decisions in modern administrative law. And even if these specific speculations are rendered moot by the Court’s eventual decision in Loper Bright and Relentless, the exercise can still help us think through the months and years ahead.

　　What Might the Court Decide?

　　We cannot be sure how exactly the Court will rule, but we can with confidence say that it will not “incapacitate the federal government.” Nor will it singlehandedly solve every problem of agency overreach. It will not radically simplify judicial review of agency action, because agency actions involve much more than mere interpretation of statutes.

　　Even on matters of statutory interpretation, a post-Chevron world will still have to grapple with the problem of ambiguous statutory text. That is not a strictly modern problem—it is a timeless one. As James Madison observed in Federalist No. 37, “[a]ll new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.” The laws’ vagueness has been exacerbated by modern legislators, but even the best Congress could not write perfectly clear laws, on every subject, every time—for all the reasons that Madison spelled out. Vagueness can be reduced, but it cannot be wished away entirely. Even after Chevron, agencies and courts will need to interpret vague legislative provisions.

　　Reclaiming “Interpretation” from Administration

　　But interpretation is not the only thing that agencies do. And for that reason, the Court’s first task in reforming Chevron might simply be to draw clearer lines between an agency’s actual effort to interpret a statute, and the other aspects of an agency’s action. This would help to remind agencies and their advocates that statutory interpretation is different from the other parts of administrative work—and part-and-parcel of judicial work.

　　As Justices Alito and Kavanaugh emphasized during oral arguments, courts are in the business of interpreting laws, and it is not obvious why they should approach the task differently in cases involving regulatory agencies. “[I]n cases that don’t involve an agency,” Justice Alito noted to Solicitor General Prelogar, “we never say we have exhausted all of our tools of interpretation and we just can’t figure out what this [law] means.”

　　For years, administrative law scholars debated “tax exceptionalism”—the notion that tax cases should be handled differently from other administrative law cases. But as Alito’s question indicates, the far more significant exceptionalism has been administrative law exceptionalism—the notion that administrative law needs judges to approach statutory interpretation with fundamentally different tools, presumptions, and values than it would in other kinds of cases.

　　Thus a post­-Chevron era may require courts to think much more carefully about what an agency’s action actually comprises—statutory interpretation, policy analysis, factual finding, or all of the above—and to distinguish those components as much as possible, in order to give each component the proper amount of scrutiny or deference. Courts can continue to review an agency’s factual findings and policy justifications with the appropriate measure of deference—e.g., the Administrative Procedure Act’s gentle “arbitrary and capricious” standard—while giving much less deference to their interpretation of statutes, as Professor Jeffrey Pojanowki detailed in his insightful 2020 article for the Harvard Law Review.

　　Justice Barrett ventured such an approach at oral argument. A single agency action, she noted, might include both “a question of statutory interpretation” and “a question of policy for the agency.” She did not oversimplify the distinction—asking, “Where is the line between something that would be then subject to arbitrary and capricious review and something that’s a question of law?”—but she recognized the fundamental difference.

　　Prioritizing Stability and Expertise

　　With respect to statutory interpretation per se, the future might resemble the Court’s decision in Kisor v. Wilkie (2019), a case concerning an agency’s interpretation of its own regulations. First, the Court reiterated a judge’s basic responsibility to interpret regulations independently, without deference to the agency, using the “traditional tools” of interpretation. Second, the Court warned that even if a regulation is genuinely ambiguous, judicial deference to an agency’s interpretation must actually reflect the agency’s special expertise on the subject matter at hand—not simply the agency’s policy goals or partisan motives. (And, it added, sometimes the courts, not agencies, have the better “comparative expertise” on a given legal question.) Finally, the Court emphasized that an agency’s interpretation is better deserving of deference when the interpretation is longstanding, and not just the latest round of regulatory reversals from one administration to another.

　　Regardless of whether the Court explicitly “Kisor­-izes” Chevron deference, that precedent’s values resonated throughout the justices’ questions at oral arguments in Relentless and Loper Bright: the need for courts to resolve more statutory questions, instead of ceding the responsibility and power to agencies; the often-exaggerated province of agency “expertise,” particularly in the task of interpreting the words of Congress’s laws; and the costs of legal uncertainty exacerbated by an era of regulatory regime changes from one presidential election to the next.

　　A Possible Post-Chevron Future

　　Perhaps that is the post-Chevron future. Courts will work harder to interpret statutes with judicial tools instead of judicial deference. Judges may still sometimes conclude that a given statute can reasonably be read more than one way, and that the agency’s view of the statute might deserve some weight. And that weight could depend significantly on whether it is the product of genuine agency expertise across multiple administrations, not just the latest administration’s new agenda and ambitions.

　　Such a decision would be less straightforward and strident than an outright renunciation of “deference” writ large. But even that kind of decision would create ripple effects through each branch of government.

　　The Courts After Chevron

　　“Chevron deference precludes judges from exercising [independent] judgment,” Justice Thomas once wrote, “forcing them to abandon what they believe is ‘the best reading of an ambiguous statute’ in favor of an agency’s construction.” As Chevron’s domain shrinks or disappears altogether, judges will have a greater responsibility to interpret statutes for themselves—even, as Justice Thomas noted, the ambiguous ones.

　　In genuinely hard cases, a Chevron­-less world would present more occasions on which textualist judges start from the same premises, apply the same tools, and still reach different conclusions.

　　This would not be new. As Alito and Kavanaugh observed at oral argument, judges do this all the time in other areas of law. They even do it already in administrative law, in cases where courts see a statute as ambiguous yet the Chevron framework still doesn’t apply—in King v. Burwell (2015), for example, a “major questions doctrine” case involving the Affordable Care Act’s insurance-subsidy provisions.

　　To be sure, one should not assume that so many statutes truly are ambiguous. Even in his seminal 1989 defense of Chevron, Justice Scalia reminded readers that “[t]he judicial task, every day, consists of finding the right answer, no matter how closely balanced the question may seem to be.” Nearly three decades later, Judge Raymond Kethledge would write that “statutory ambiguities are less like dandelions on an unmowed lawn than they are like manufacturing defects in a modern automobile: they happen, but they are pretty rare, given the number of parts involved.” Perhaps Chevron itself caused judges to see too many statutes as less clear than they truly were. (“There is nothing so liberating for a judge as the discovery of an ambiguity,” Judge Kethledge added.)

　　Pressing Textualism

　　“I do not suggest … that originalists always agree upon their answer, Justice Scalia wrote in A Matter of Interpretation. “There is plenty of room for disagreement as to what original meaning was, and even more as to how that original meaning applies to the situation before the court.” In genuinely hard cases, a Chevron­-less world would present more such occasions on which textualist judges start from the same premises, apply the same tools, and still reach different conclusions as to the best interpretation of an unclear law.

　　Such disagreements are not a failure of textualism. They are a fact of textualism. But post-Chevron, they would challenge textualists to think even harder about statutory interpretation, and they would create more occasions for textualist judges to draw ever-finer distinctions about how to interpret laws. At its best, this process would make textualism more difficult and nuanced—and better.

　　Such disagreements would also spur anti-textualists to caricature the entire thing as indeterminate, arbitrary, and political. If two textualist judges can’t agree on the law’s meaning, they’ll say, then textualism is a sham. So the post-Chevron world would challenge textualists to convince others—and not just ourselves—that interpretive disagreements are inevitable. The point of textualism is not that it produces judicial unanimity, but that it produces judicial restraint in service of the rule of law.

　　Nudging Toward Nondelegation

　　But post-Chevron textualism could have another ripple effect. The more judges are required to grapple with unclear texts and settle on contestable “best” readings of ambiguous laws, the more those judges may see the value of a robust nondelegation doctrine. Chevron itself was a corollary to the notion that modern government requires broad delegations of regulatory power to agencies. Again, Scalia’s 1989 article captures the point well: “If Congress is to delegate broadly, as modern times are thought to demand,” then, he concluded, Chevron would be the right judicial approach.

　　If Chevron turns out to be untenable, then what would its failure mean for the original premise? If textualist judges find themselves spending much more time and effort looking for “best” readings of badly written statutes, and seeing how little genuine substance those statutes give (not just to judges but to agencies and the people themselves) then they may begin to believe that the costs of judicial enforcement of nondelegation doctrines—costs that caused Scalia great concern from the start—may be outweighed by a nondelegation doctrine’s benefits.

　　The more that judges have to grapple with open-ended statutory language, trying to ascertain their original meaning without the escape hatch of Chevron deference, the more that judges will need to ascribe a highly contestable “best” meaning to the statute’s words. Such cases will spur non-textualists to denounce Chevron’s decline, but they will spur textualists to think harder about the underlying constitutional problem: what does it mean for a legislature to pass laws that do nothing more than empower agencies to pass laws? Judge Kethledge pointed this out, referencing Locke’s Second Treatise in a keynote address at Harvard this spring: “The power of the legislative … can be no other” than “to make laws, and not to make legislators.” Chevron’s end will energize and improve the nondelegation debates.

　　Elevating Expertise—And Challenging It

　　Perhaps Loper Bright and Relentless will follow Kisor’s lead, producing a new deference doctrine that gives greater weight to agencies’ statutory interpretations that are longstanding, or the product of an agency’s comparative “expertise.” Such an approach would require judges to make difficult judgments between “old” and “new” interpretations.

　　Those judgments, however, might be no harder than distinguishing “ambiguous” and “unambiguous” statutes under Chevron. (Or, for that matter, distinguishing “major questions” from “minor questions” under the modern major questions doctrine.) But, as Justice Kavanaugh noted in the Harvard Law Review, “judges often cannot make that initial clarity versus ambiguity decision in a settled, principled, or evenhanded way.” Judgments about an agency’s expertise may be as difficult, and as contentious. This, too, will present challenges for textualist judges, both in how they reach their decisions and how they explain them.

　　A post-Chevron world may spark much broader judicial consideration of what agency “expertise” actually means, particularly in the context of statutory interpretation. Agencies do not approach statutes as detached, neutral interpreters—especially the presidentially appointed, Senate-confirmed officers who lead the agencies. Eugene Scalia, former US Secretary of Labor, recently described the problem: “For an agency interpretation to be authoritative, courts have said, it has to come from a senior official—a cabinet secretary or agency head. But the people actually doing the interpreting often are staff lawyers at a much lower level in the agency.” Indeed, “[s]ome agency heads not only don’t interpret; at times they’re indifferent to—even contemptuous of—the right legal answer.”

　　Chevron largely assumed away the problem: so long as the agency’s action described and justified its interpretation of the laws in a final rulemaking or other authoritative agency action, the courts generally did not attempt to disaggregate the agency’s reasoning process.

　　But post-Chevron, a deference framework that prioritizes agency expertise would need to disaggregate the agency process, to see whether the agency’s adoption of a particular statutory interpretation is actually the product of expertise. And it would need to disaggregate “expertise” itself, to see if the expertise claimed by the agency actually is useful in shedding light on the statute’s meaning. As Kisor put it, “When the agency has no comparative expertise in resolving a regulatory ambiguity, Congress presumably would not grant it that authority.” All the more so with an agency’s and court’s comparative expertise in resolving statutory ambiguities.

　　The Court has already demonstrated its willingness to throw out an agency’s rationale for a policy when the nominal explanation is pretextual, in the 2019 case on adding a citizenship question for the census. Reframing judicial deference in terms of “expertise” may force much more judicial scrutiny of agencies’ legal interpretations, to ensure that they are not merely reverse-engineered to suit the agency’s policy agenda.

　　And agencies, in turn, will need to react accordingly.

　　The Executive After Chevron

　　If courts were to give agencies more deference for statutory interpretations produced genuinely from agency expertise, then agencies would need to devote more time and energy to that aspect of their work. They would need to explain their legal interpretations as comprehensively and as credibly as possible.

　　More Credibility, Less Energy?

　　Agency rulemakings already produce immense documents, often with long legal arguments. Post-Chevron, agencies may have strong incentives to make them even longer and more detailed. In those analyses, they may need to show how their statutory interpretations reflect the agency’s best expertise, from its actual experts. So long as the judicial deference framework continues to focus on the agency’s authoritative decisionmaker—namely, the agency’s head—rather than the bureaucrats within the organizational chart, the agency will need to show that the agency’s staff and its leader adopted this interpretation.

　　Yet to the extent that the courts continue to police pretextual agency explanations, an agency head will need to walk a very fine line. Not only will he need to adopt the agency’s staff expert judgment, but he will also have to be careful not to overstate his reliance on the staff’s expert judgment, lest he engage in unlawful pretext. None of this is meant to accept theories of agency “expertise” at face value—again, post-Chevron litigation may spur much more careful and skeptical evaluations of such theories. But even taking agency expertise as a given, the agency’s use and description of expert judgments will become much more important, and much more fraught.

　　This is a decidedly mixed bag, in many respects. Agency actions may become much more credible, detailed, and expert—all good things. But by the same token, they will become much more ponderous, verbose, and slow—which, as I noted in a 2021 symposium for the Administrative Procedure Act’s 75th anniversary, is the antithesis of Publius’s “energy in the executive.”

　　Spurring Steadier Administration, Sooner?

　　Publius also prized “steady” administration, and a more Kisor­-like version of Chevron deference may be steadier, in the sense that agencies will get more deference for longstanding interpretations than for flip-flops. This would create interesting incentives, too.

　　Most importantly, in an era of polarized partisan administration, it would emphasize first-mover advantages: an agency’s politically appointed leadership will want to establish the agency’s authoritative legal interpretations before the other party has a chance to take over, especially for significant new legislation.

　　Take a decade-old example. In 2010, Congress and President Obama enacted the Dodd-Frank Act, which created the Consumer Financial Protection Bureau and empowered it to police “abusive” practices. The sheer ambiguity of the agency’s remit raised significant concerns. When asked about this during a House Oversight Committee hearing in 2012, the CFPB’s inaugural director said that he did not think that clearly defining that legal provision up-front would be “useful.” Even though the law’s terms were a “puzzle,” he preferred to define it on a case-by-case basis, despite the lack of notice to those being regulated.

　　Under Chevron, an agency head largely enjoyed that luxury. But post-Chevron, an agency may try to interpret and clarify a statute’s key terms as promptly and credibly as possible. That would be a good thing, to the extent that it reflects a good-faith effort to clarify laws (in accordance with Congress’s intended meaning) as soon as possible so that the laws can be genuinely relied upon.

　　Other administrative incentives may change after Chevron, too. One of Chevron’s virtues was to avoid the instability and uncertainty that occurs when different courts reach different conclusions about what a law means. If two circuits split over the meaning of the law—say, one court agrees with an agency and the other court disagrees—then what should an agency do? What should the public do? Chevron deference muted that problem, simply because agencies lost far fewer statutory-interpretation cases. Without Chevron, this problem will reassert itself more often. On any given statutory issue, the Supreme Court itself might eventually hear the question and settle it. (A post-Chevron era will thus involve more Supreme Court review of regulatory legal questions, which is not a bad thing either.) But in the meantime, when circuits are splitting over a law’s meaning, the executive branch will need to think much more actively about when to acquiesce to a given circuit’s interpretation, and when to insist upon nonacquiescence.

　　By channeling lawmaking power toward agencies, Chevron also channeled political energy toward agencies—and thus drained political energy away from Congress.

　　Those post­-Chevron issues—and the agencies’ greater risk that judges will reject their interpretations of unclear statutes—would create at least one more incentive for agencies.Without Chevron, agencies would have much more reason to go back to Congress to clarify statutory ambiguities, especially when the Congress and executive branch that enacted the law are still controlled by the same political party. With Chevron, by contrast, an agency can either go back to Congress for new legislation (sometimes framed as a “technical correction”), or it can try to subtly smooth away such problems through the agency’s own interpretations and try to get Chevron deference. Agencies clearly prefer Option B.

　　In the end, this echoes one of the main arguments against Chevron: that by channeling lawmaking power toward agencies, it also channeled political energy toward agencies—and thus drained political energy away from Congress, removing the hydraulic forces that actually force Congress to do the hard work of deliberation, moderation, and compromise that a legislative process entails.

　　So after Chevron, perhaps agencies will more eagerly turn to Congress. But what, then, would Congress do?

　　Congress After Chevron

　　Just as returning law-interpreting responsibility to courts would put courts to a test, returning law-making responsibility to Congress would put it to a test, too. Ending Chevron could help return Congress to its proper constitutional role: our government’s center of policymaking gravity. But could Congress actually re-learn how to legislate?

　　It might require at least three things:

　　First, Congress would need to rebuild its own legislative capacities. A Congress organized primarily for oversight is well-built to react, criticize, investigate, and, in a sense, prosecute. A Congress organized primarily for legislation must be well-built to be prospective, not just retrospective—to construct, not just to deconstruct. A post-Chevron Congress would still need both capacities, of course, but it would need much more of a legislative capacity, which has been rendered secondary to its oversight capacity.

　　Second, Congress would need better organization and procedures that foster a legislative process. This is difficult because the best legislative process is a deliberative one. The best versions of structures and rules (say, the filibuster rule) can promote deliberation, but the worst versions of the very same structures or rules will destroy the legislative process.

　　And third, Congress would need a culture of deliberation—the basic norms, mindsets, and instincts necessary to make a good legislator. These, too, differ significantly from what is needed to make good members of an oversight body.

　　Ending Chevron, and channeling political energy back to Congress, would increase the need for all these things. Each of them already is too scarce on Capitol Hill (as my AEI colleagues Kevin Kosar and Philip Wallach have documented at length). If Congress suddenly bears more policymaking responsibility, can it possibly rise to the occasion?

　　Chevron’s critics have everything riding on this. The case against Chevron—and the case for the major questions doctrine and nondelegation doctrine—have been premised upon the fact that Congress has lost or abdicated its constitutional powers, and that the courts should restore those powers and responsibilities to it. If Congress simply fails to be a legislative body, then the courts may look like fools for believing otherwise.

　　The case for Chevron was largely premised upon Congress’s supposed incapacity to legislate clearly, even on technical matters, and to keep updating legislation to reflect changing times. Again, Justice Scalia recognized this as the premise for Chevron: “If Congress is to delegate broadly, as modern times are thought to demand, it seems to me desirable that the delegee be able to suit its actions to the times,” he wrote in 1989. His ambivalence was clear: he distanced himself from the notion that broad delegations were strictly necessary. Perhaps nothing can legitimize Chevron deference and the administrative faster than an incompetent post-Chevron Congress.

　　Above all, our constitutional system for administration rests on Congress. If Congress writes clearer laws and regularly updates them, it will be easier for the executive to faithfully administer them, and the easier it will be for the courts to accurately interpret them.

　　Chevron proved to be part of a much broader decades-long decline in the other direction. Congress’s broad grants of discretionary power to agencies, through poorly written statutes, made both the executive’s and judiciary’s jobs harder.

　　Indeed, those delegations of power deformed the other branches. They caused the executive branch to spend less time enforcing laws and more time making laws in the first instance, through regulations clarifying (or ostensibly clarifying) vague statutes—tasks more befitting of a legislature than an executive.

　　Similarly, broad delegations caused courts to spend less time interpreting the laws, and more time making much more nebulous judgments about whether laws were “ambiguous” and whether statutory interpretations were “reasonable”—prudential questions more befitting of an executive than a judge.

　　And at the same time, such delegations gave Congress itself more and more reason to focus on oversight than on legislation—retrospective judgments on matters of fact and law more befitting of a court than a legislature.

　　Congress wrote laws that were more vague, not more specific. With Chevron deference, administrations exacerbated the legal uncertainty instead of reducing it. And through Chevron deference, the courts did not bring legal questions to a resolution, so much as to hold them open for perennial change after every new presidential election. Each of the three branches turned out to be doing the exact opposite of its constitutional job.

　　After Chevron: Constitutional Administration

　　Alexander Hamilton wrote The Federalist’s essays on administration per se: the most famous being No. 70, though most of his key insights on steady administration are found in the essays that surround it. In both Nos. 68 and 76 he tells readers that “the true test of a good government is its aptitude and tendency to produce a good administration.” By “good administration” he meant energetic, steady, long-lasting administration.

　　Nonetheless, perhaps The Federalist’s subtlest insight into good administration came not from Hamilton, but from Madison. At the outset of this essay, I quoted Madison’s Federalist No. 37: “All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.” In that single sentence, Madison pointed the way for each of the three branches.

　　First, Congress needs to actually dedicate itself to the greatest possible technical skill, the fullest and most mature deliberation. It will not always succeed, of course; but the more that it fails, the worse for everyone. Congress needs to strive to make laws as clear as reasonably possible.

　　Then the executive needs to further reduce the uncertainty, by trying to ascertain and implement Congress’s meaning in those laws. The executive’s job, after all, is to “take care that the Laws be faithfully executed.” Madison’s “particular” deliberations are, in no small part, the deliberations of how to understand and apply the laws in the context of particular facts and circumstances—the work of the executive branch, in the first instance.

　　Finally, this process ends with courts, which eventually must try to ascertain what the law means in order to decide cases. The courts’ deliberate, reactive nature—which Hamilton rightly emphasized in Federalist No. 78—is especially important here, because it creates space for administration to do its own part first. The courts might even learn from the executive’s own efforts to interpret and implement Congress’s laws. But in the end, “it is the province of the courts to liquidate and fix their meaning and operation.”

　　Four decades after the Court decided Chevron, it seems clear that its decision unintentionally undermined all three branches’ roles in the constitutional process. Congress wrote vague laws, and neither agencies nor courts brought clarity or stability.

　　What might a post-Chevron era bring? Perhaps good, steady, constitutional administration. Or so we can hope.