What If Loper Bright/Relentless Is Right and Chevron Was Wrong Because We Are A Free People?
The Court’s opinion in Loper Bright and Relentless is, obviously, about what to do with an ambiguous statute. But when paired with the dissent, the twinned cases tell a story of jurisprudential tectonic plates grinding against each other in a way that—if we pay close attention—might give us a deeper appreciation for the proper role of law in our society. We are now almost exactly one year removed from this landmark opinion—an apt excuse (if we need one) to reflect on how a statutory ambiguity gave rise to106 pages of contesting opinions that, at a fundamental level, are built on profoundly different premises.
In the story told by these cases, it is the dissent that interests me the most. Justice Kagan is, of course, an extraordinarily intelligent and accomplished jurist. So I take it as a given that her dissent is the most fulsome defense available of the Chevron deference doctrine. And yet I find her opinion wholly unpersuasive. But it’s more than that. When I peruse it, I can’t shake the feeling that I’m reading something written by someone for whom the rule of law, our Constitution’s structure, and the presumptions that govern the court’s work are a jurisprudential second language. Or, perhaps, that she was writing about the Platonic shadow of things, rather than the things themselves.
At the risk of being pedantic, I’d like to start with some really obvious ideas; I trust you will eventually see why. There are some basic background principles jurists must accept (at least in our system of government) before turning to more technical issues, like how to construe an ambiguous statute. One of those is the nature of law itself. Stripped to its essence, a law commands or forbids specified behavior. It has real world implications when it either commands you to do what you do not want to do, or it forbids you from doing something you do want to do.
Another of those principles is the “rule of law.” We pride ourselves, and rightly so, on a legal system that forswears arbitrary and capricious governmental actions through a commitment to “due process.” We give life to this principle by requiring that the laws governing our behavior be adopted in advance of their application, that we have notice of their adoption, and that they are sufficiently comprehensible that we can know in advance how to order our affairs so that they stay on the safe side of the line.
Disagreements over what these laws say or how they apply to one’s choices are, of course, the fount of private lawsuits and government enforcement actions. As these reach the courts, we immediately encounter the next background principle: The party aiming to change the status quo must carry the burdens of persuasion and proof. Satisfying these burdens results in judicial relief in the form of an alteration to the status quo. Failing to satisfy the burdens leaves it unchanged.
Of the two, the burden of persuasion is of most interest here. As applied to a question of law, this axiom says the plaintiff must demonstrate to the court’s satisfaction that the law prescribes a legal duty to do or refrain from doing the subject of the case. We generally test the existence of this rule of decision through a motion on the pleadings or for summary judgment. We all know what happens if the plaintiff fails in his task: The case ends, and properly so.
We’re used to considering these principles up close and in detail, but just like a Pointilist painting we’ll never really know what we’re looking at if we don’t take a few steps back to appreciate the whole. When we do, we immediately recognize them as sketching out the basic, but essential, contours of the grand experiment we started over 200 years ago. These are the principles that, collectively, make it possible for us to peacefully and prosperously live together in society while enjoying one of mankind’s enduring desiderata: Freedom.
We are a free people. As relevant here, that means we are free to do as we wish except to the extent there are duly adopted and comprehensible laws that countermand those wishes. That is, we do not need to seek a government official’s permission to act unless our laws specifically and legitimately require that permission. Otherwise, we must simply respect the lines describing what is out of bounds. This is what it means to be free. And freedom is preserved in court cases by requiring the plaintiff to bring forth a comprehensible rule of decision applicable to the case under consideration.
I’ve engaged in this somewhat tedious set-up because I think it will help explain Justice Kagan’s dissent, a dissent that suggests an extreme discomfort with the possibility that there is a realm of activity that the law neither commands nor forbids. Nowhere in her opinion is there room for the law’s silence. If Congress leaves a “gap,” or “the law runs out” when trying to construe an ambiguous statute, Justice Kagan insists that someone must supply the content that Congress did not. And in her reckoning, because Congress already had a chance, the only two options are the agency and the court.
This is not my characterization of what Justice Kagan said, it’s nearly a quote. Here she is in her own voice:
“But if the court finds, at the end of its interpretive work, that Congress has left an ambiguity or gap, then a choice must be made. Who should give content to a statute when Congress’s instructions have run out? Should it be a court? Or should it be the agency Congress has charged with administering the statute?”
Loper Bright Enters. v. Raimondo, 603 U.S. 369, 449 (2024) (Kagan, J., dissenting).
These questions are not rhetorical, they are a predicate for her normative proposition that someone must complete the legislative work that Congress left undone: “But when courts have decided that Congress has not done so [“addressed a given issue”], a choice arises. Absent a legislative directive, either the administering agency or a court must take the lead.” Id. at 459.
Let’s just pause here for a moment and assess where we are at in the analysis. There are circumstances, Justice Kagan says, when Congress simply hasn’t addressed the issue before the Court—there is a gap in the statute, or the meaning of its terms are not comprehensible even after the Court has exhausted its disambiguation toolbox. However we got to this point, the problem is manifest: Congress, the sole and exclusive lawmaker under our form of government, has failed to provide a rule of decision regarding a point on which the plaintiff/prosecutor’s case depends. Whether through oversight, poor drafting, or even an intentional decision to leave the question open, the Court is left with no law to apply.
That this should happen is not surprising. Nor is the inevitable result—at least in cases in which an agency is not a party to the litigation. But when an agency is a party, what Justice Kagan said should follow from the lack of law is strikingly dissonant for those who appreciate the freedom that exists in legislative silence. Someone, she says, must take up the legislative mantle and finish the job that Congress left undone (whether intentionally or not). And as a devout defender of Chevron, her nominee for that responsibility is, unsurprisingly, the administrative agency.
If it were otherwise, she said, the Court would become master of policy, a role for which it is both structurally and dispositionally unprepared:
[The majority] gives courts the power to make all manner of scientific and technical judgments. It gives courts the power to make all manner of policy calls, including about how to weigh competing goods and values. (See Chevron itself.) It puts courts at the apex of the administrative process as to every conceivable subject—because there are always gaps and ambiguities in regulatory statutes, and often of great import. . . . In every sphere of current or future federal regulation, expect courts from now on to play a commanding role. It is not a role Congress has given to them, in the APA or any other statute. It is a role this Court has now claimed for itself, as well as for other judges.
Id. at 479.
But that’s true only if you grant her premise that the absence of a law is a possibility too terrible to contemplate—so terrible that the need to avoid it can warp the Constitution into passing law-creating authority to the Executive Branch. And that’s the real point of difference between Justice Kagan and the majority. The majority is content to take the law as it finds it, such as it is. It proposes no scientific or technical judgments, or weighing of competing goods and values. It does not propose substituting agency expertise with its own. In fact, the job it proposes to do isn’t agency-facing at all. What the majority contemplates is asking Congress (by interrogating the statute it passed) what it meant when it used the language under consideration. It asks Congress, instead of the agency’s experts, because we assume it must surely have intended to say something intelligible about the subject on which it was legislating. And even if it failed in the task it assigned to itself, that doesn’t mean the interpretive responsibility reinvents itself as an inquiry into what the Executive Branch would prefer Congress to have meant but manifestly didn’t.
So when Justice Kagan frets that the Court will pick up the legislative mantle, instead of the Executive, it’s largely because she has dismissed out of hand the other alternative, the alternative on which our entire form of government is premised. She rejects the possibility that, with respect to the subject matter of the case under consideration, we might remain at liberty. We know what happens when a private plaintiff arrives at court without the ability to identify a legal duty to which the defendant must answer: The case ends. And Justice Kagan knows this. But when the prosecuting party is the government, it suddenly becomes inconceivable that this could be the result. The rule of law, the presumptions, the burdens, they must all fall so that the agency may have its way.
Ultimately, the question devolves to this: What does it mean when the “law runs out,” in Justice Kagan’s incisive phrase? If the Constitution were a map, it would bear a legend precisely at that point proclaiming “there lies freedom.” Drawing that boundary, and living on its lee side, has been the work of centuries. But one suspects that Justice Kagan would amend the legend to read “there lies danger,” and that she would then push the boundary until it was shoved off the map altogether.
The Court’s opinion in the Loper Bright and Relentless cases is right for many reasons, not the least of which is that the possibility of “the law running out” didn’t spook it into missing the fundamental reality that freedom begins where legislative speech ends.
June 23, 2025