Loper Bright Enterprises v Raimondo, Brief for Amici Curiae PTAAARMIGAN LLC and US Inventor in Support of Neither Party

Abstract

The Administrative Procedure Act, in 5 U.S.C. § 553, lays out two paths for agency rulemaking. Section 553(c) lays out a full-dress path by which an agency can make any rule authorized by the agency’s organic statute. Another path is an “interpretative” rule that can be issued by simple publication, § 553(d)(2)/§ 552(a)(1), but that path is available only for rules that genuinely “interpret” genuine ambiguity. Chevron deference operates differently on those two paths. When an agency promulgates a rule using full-dress procedure, the result has “force and effect of law”—Chevron applies by operation of statute. 5 U.S.C. § 553. In all other circumstances—e.g., when an agency adopts a rule without notice-and-comment under the blanket authority to promulgate “interpretative” rules without notice-and-comment, § 553(b)(A) and (d)(2), or issues guidance with less than full-dress procedure—Chevron operates differently. For a sublegislative rule, Chevron deference—and the force of law that comes as a corollary—requires, first, the statutory preconditions for a valid rule, and second, additional “reasonableness” criteria to ensure that the agency’s deliberation is as solid as a legislative rule’s. The two contexts arise under two different heads of authority, require different levels of rulemaking procedure, and different attendant conditions—when Chevron is so bifurcated, Chevron has statutory legitimacy, Chevron preserves separation of powers, and Chevron reinforces agencies’ obligations to observe procedures for fair rulemaking.

Keywords: Chevron USA v NRDC, rulemaking, administrative law