Eli Nachmany (Harvard Law School) has posted Deference Undisturbed (Notre Dame Law Review) on SSRN. Here is the abstract:
The Supreme Court’s departure from Chevron deference threatened to upend the administrative state. To mitigate the consequences of its opinion in Loper Bright Enterprises v. Raimondo, the Court established that all existing decisions that relied on Chevron deference would get “statutory stare decisis.” That prevents the re-litigation—at least to some extent—of regulations that were previously upheld under Chevron. But attaching “statutory stare decisis” to these decisions makes little sense. These cases do not stand for “statutory precedents,” despite the Court’s characterization of them as such. A precedent that applied Chevron to uphold a regulation is not a statutory ruling—it is a determination about a regulation’s validity under the Administrative Procedure Act. To be sure, a loose form of statutory interpretation was a step along the path to that determination of validity. But a Chevron-deference-grounded decision is not a conclusion about a statute’s meaning. And the distinction between statutory stare decisis and regulatory stare decisis has important implications for agency flexibility to depart from regulations that have been upheld under Chevron in the past, notwithstanding the statutory stare decisis paragraph in Loper Bright. Going forward, agencies have the flexibility to depart from regulations that courts have upheld under Chevron. But an agency, at a later time, cannot reinstate the old regulation and claim stare decisis. This flexibility and these limits inhered in Chevron’s framework, and they remain after Loper Bright.
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