Marc Canellas (Maryland Office The Public Defender) has posted “Mo AI, Skidmore Problems: Governing in our Loper Bright Era” (Journal of Law and Politics, Volume 41 (forthcoming)) on SSRN. Here is the abstract:
Chevron is dead. Skidmore is dead-lettered. Long live Loper Bright. Under Loper Bright Enterprises v. Raimondo, judges have become judicial policymakers, required to determine the single, best, and only permissible interpretation of any statute, no matter how impenetrable, no matter whether they receive or weigh any external perspectives. As the Majority believed, Congress expects courts to handle technical statutory questions as agencies have no special competency to answer them. Despite the Majority’s praise of Skidmore at the expense of Chevron, they implicitly overruledSkidmore in rejecting the possibility that sometimes the cases where the agency had decisive interpretations. Loper Brightcrowned judges into judicial policymakers posing an incredible challenge to the future of the administrative state and federal governance of all kinds, a challenge, as Justice Kagan’s dissent showed, is best exemplified by artificial intelligence (AI). Congress already has difficulty governing and wants agencies to make policy choices, not courts with their long history of poor technical understanding. Given that ambiguity can be found almost any statute, any court can get to the Loper Bright step of statutory interpretation and justify their single, best meaning which will ossify and balkanize incorrect interpretations of statutes. But the federal government is not without policy choices for its response. Congress can codifyChevron deference generally or into individual legislation. Congress and agencies can embrace soft law-instruments like standards and certifications that create expectations but which are not directly enforceable. Lastly, agencies can categorize their decisions as factbound to protect them from Court interference; or reject rulemaking altogether and embrace jawboning, informal efforts by government to persuade non-government parties to take action.