Discretion Is Not (Chevron) Deference

Abstract

Discretion is not deference. Many often confuse the two, but the distinction is important, especially now that the Supreme Court has eliminated the deference doctrine associated with Chevron U.S.A., Inc. v. Natural Resources Defense Council. Chevron deference concerned ambiguous statutory terms or phrases (and implicit grants of authority), while discretion often concerns unambiguously broad statutory terms or phrases (and explicit grants of authority). So even with Chevron deference gone, agencies that can point to broad terms or phrases in the statutes they administer will retain wide latitude to carry out their missions. The Supreme Court made this clear in Loper Bright Enterprises v. Raimondo, explaining, in juxtaposition to Chevron deference, that a “statute’s meaning may well be that the agency is authorized to exercise a degree of discretion,” and “courts must respect the delegation” of this discretionary authority from Congress.