Loper Bright Is the Law But Poor Statutory Interpretation John A. Townsend

In Loper Bright Ent. v. Raimondo, 603 U.S. ___, 144 S. Ct. 2244 (2024), the Court pronounced that APA § 706, properly interpreted, requires that court review agency statutory interpretations de novo without deference to an agency notice and comment interpretive regulation. The claim rests on (i) the opening words of § 706 and (ii) the claim that, at the time of enactment of the APA, the courts did not defer to agency interpretations in agency notice and comment interpretive regulations, important because all recognized that § 706 made no change in the standard of judicial review. Both claims are false, resting on poor scholarship of the history and law relevant to Congress’ meaning of § 706 at its enactment in 1946.<br><br>One key to the Court’s error is its perceived need to address the state of deference upon enactment of the APA. If the words of § 706 command de novo review, then what difference does it make what the state of deference was upon enactment of the APA?<br><br>In this article, I show that § 706, properly interpreted requires deference, because as enacted in 1946:<br><br>(i) the words of the APA, including the requirement in § 706(2)(A) that agency action be “held unlawful and set aside” only if “not in accordance with law,” a standard the Supreme Court held required deference in Dobson v. Commissioner, 320 U.S. 489 (1943) , and the unquestioned understanding that § 706, upon enactment, applied the then-current state of review, which included deference.&nbsp;<br><br>Loper Bright failed to correctly assess the meaning of § 706. Loper Bright is the law, but, at a minimum, poor scholarship. I cannot expect that the Supreme Court will correct the errors, but I do feel the Supreme Court's errors should not go without comment.