After Chevron, the Interpreting Did Not Stop

When the Supreme Court overruled Chevron, the coverage treated it as a transfer of power from agencies to courts. That is roughly right and it misses the more durable consequence, which is that the ambiguity itself did not go anywhere.

Statutes are ambiguous because legislating is hard, because coalitions are assembled by leaving things unsaid, and because the world produces situations the drafters did not have in mind. None of those causes was addressed. Every ambiguous provision that existed before is still ambiguous.

What changed is who resolves it, and on what record. Under deference, an agency’s reading governed if it was reasonable. Without it, a court supplies the best reading. The scope of review did not change; the weight given to the agency’s answer did.

The practical effect is not that agencies stopped interpreting. They cannot stop. An agency that administers a programme has to decide today what a word means, because a benefit has to be paid or refused today, and the litigation that tests the decision arrives years later if it arrives at all.

An agency still makes the first interpretation of every ambiguous term. It simply makes it knowing the interpretation now has to survive on its own reasoning rather than on a presumption.

That has changed how the work is written more than what the work concludes. Preambles have grown, and the comment record they answer has grown with them. Agencies now explain their reading against text, structure and history at a length that would have been unnecessary when reasonableness was the standard, because the audience is a court that will not defer.

Whether this improves the output is genuinely unclear, and anyone confident either way is ahead of the evidence. Longer explanations are easier to check, which is good. They are also slower to produce and easier to attack on any single step, which pushes agencies toward narrower rules that decide less.

The second effect is distributional, and it is the one that gets least attention. Resolving ambiguity in court is expensive. A firm with counsel can afford to litigate a definition it dislikes. A beneficiary who is told that a word does not cover their circumstances generally cannot.

When interpretive authority moves from an agency to a courtroom, it moves toward whoever can afford to be in the courtroom.

That is not an argument that deference was correct. It is an argument that the change has a price, and the price is not paid evenly by the parties who face these questions.

The third effect is on Congress, and it is the one most often predicted and least often observed. A legislature that knows courts will not defer has an incentive to draft precisely. It also has the same coalition problems that produced the ambiguity in the first place, and precision is what coalitions trade away first.

The reasonable expectation is not that statutes become clearer, but that the body of regulation grows more detailed while the statutes underneath stay as vague as the politics require. The interpreting continues. It just happens further down, in longer documents, defended at greater length, and resolved eventually by whoever brought the case.