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Abstract

For nearly forty years, Chevron required courts to defer to an agency’s reasonable interpretation of an ambiguous statute, even when a better reading was available. This approach undermined the role of the judiciary and disrupted the separation of powers. Rather than interpreting the law, courts became second to the Executive Branch in determining what statutes meant. Congress contributed to the problem by drafting vague laws and depending on agencies to resolve the ambiguity. The result was a structural imbalance that left courts out of place and agencies in charge.

In Loper Bright, the Supreme Court ended Chevron deference and returned the power to interpret law to the courts. This was a necessary correction. Courts must decide what the law means. Congress must write clear statutes. Agencies must enforce them. Loper Bright restores a proper constitutional triangle by returning the courts’ constitutional power to interpret federal statutes.

But ending Chevron deference does not mean courts should disregard agency expertise altogether. Agencies possess subject-matter knowledge that often can assist courts in understanding complex statutory schemes. The key challenge for courts after Loper Bright is determining how to remain open to agency insights without ceding legal judgment under this emerging framework.

Courts can and should create structured opportunities for agencies to be heard (just without being bound by them). This article promotes the principle of considering without conceding and offers practical mechanisms for integrating agency knowledge into judicial reasoning. These include:

  • Allowing agencies to participate as amici in court proceedings, either on motion or by leave of court; 
  • Inviting limited comment letters or technical memoranda from agencies when specialized input would be helpful to a court’s analysis; 
  • Using court-appointed independent experts under Federal Rule of Evidence 706 to assist with complex factual or scientific issues; and 
  • Considering legislative solutions or local rules that facilitate courts’ requests or management of agency input.

These mechanisms would allow courts to benefit from the expertise of those with specialized knowledge and experience while keeping the authority to interpret the law where it belongs: in the judiciary. They would also give regulated parties and the public a clearer view of who is influencing the interpretation of statutes and on what grounds.

This Article argues that courts should develop a principled and restrained framework for considering agency views. Courts should evaluate agency input for its reasoning and relevance, not its source. This approach keeps courts in charge, respects the expertise of agencies, and encourages Congress to legislate more clearly and completely.

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