Marko Petrovic (Georgetown University Law Center), Kevin Tobia (Georgetown University Law Center), and Daniel E. Walters (Texas A&M University School of Law) have posted When is the Best Reading of A Statute that it Delegates Discretion? on SSRN. Here is the abstract:
The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo to end Chevron deference has at least temporarily unsettled the field of administrative law and cast administrative agencies’ place in government into serious doubt. But does Loper Bright really portend a “revolution” in administrative law, or will it augur a “marginal” reframing of familiar principles? Much will turn on the significance of sixteen words, in which the Court states that “often,” the best reading of a statute is that it authorizes an agency to exercise a degree of discretion. Given several of the justices’ commitment to a brand of textualism that centers “ordinary” readers of statutes, the likely doctrinal path forward is that the Court will analyze whether a hypothetical reasonably informed reader would understand statutory language in context to delegate a degree of discretion.
We illuminate this path with a series of large empirical studies of over 5,000 lay American readers. We test the Court’s proposed framework—that discretion can be communicated by (1) express statements to define terms, (2) express statements to “fill in details”, and (3) the inclusion of open-ended or flexible terms. The study has important implications for how sweeping of a change Loper Bright initiated, and it provides potential baselines for the future elaboration of delegations by lower courts and guidance for Congress in designing delegations that will comply with Loper Bright. More generally, our analysis highlights the importance of the ordinary meaning of delegation in the Loper Bright framework, contrasting with competing candidates that do not comport with the textualist paradigm.
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