Deference and the Rule of Law

Abstract

The U.S. Supreme Court’s 2024 ruling in Loper Bright Enterprises v. Raimondo ended the longstanding practice under which courts deferred to reasonable agency interpretations of unclear statutory language. Yet the Loper Bright Court erred in holding that such deference violated a federal statute. Deference to agencies is justified by their expertise and political accountability. Moreover, contrary to the majority’s suggestion, deference does not violate the law-declaration principle. Indeed, deference to other actors is inherent in the judicial function; courts routinely defer to other actors because ‘saying what the law is’ means identifying the authoritative utterances of those other actors. Although the non-deferential regime of Loper Bright might be seen as useful in the present moment—when federal agencies are asserting unprecedented powers—such a view misunderstands what is happening. The current U.S. administration is not adopting questionable but arguably reasonable interpretations of federal law. Across many domains, the current administration is simply acting lawlessly.