The Supreme Court's ruling in Loper Bright, which concluded that Chevron deference conflicts with the Administrative Procedure Act (APA), has been criticized for a fundamental error in legal interpretation. According to Jonathan H. Adler writing for Reason, the Court failed to recognize that Section 706 of the APA, which assigns courts the role of interpreting statutory provisions rather than deferring to agencies, did not apply to the Chevron case because Chevron was not an APA review case.

Chief Justice Roberts had explained that under Section 706, "the reviewing court—not the agency whose action it reviews—is to decide all relevant questions of law and interpret statutory provisions." However, the Clean Air Act, which was central to Chevron, explicitly supersedes the APA's provisions, stating that sections 553 through 557 and 706 of Title 5 of the APA "shall not, except as expressly provided in this subsection, apply to actions to which this subsection applies" (42 U.S.C. § 7607(d)(1)).

The problem identified in Loper Bright, Adler notes, is not with the Chevron doctrine itself but with courts, including the Supreme Court, indiscriminately applying Chevron deference in cases where Section 706 of the APA does apply. This misapplication has led to confusion over the proper scope of judicial review of agency interpretations.

Judge Ray Randolph has also addressed this "error" in the context of a Supreme Court instruction to reconsider a prior decision deferring to an agency interpretation under Chevron.

In summary, the critique emphasizes that the Supreme Court's Chevron decision did not cite the APA because it was not an APA case, and the incompatibility found in Loper Bright stems from conflating distinct statutory frameworks.

Sources