We blogged recently about the Supreme Court’s historic power grab in the Loper Bright case, which turned agency law on its head by overturning the Chevron case, the cornerstone of modern agency law. In Loper Bright, the Supreme Court’s clear intention is to weaken federal agencies, which is readily apparent in the decision itself and, more importantly, from the recent pattern of administrative law decisions from the Supreme Court all consistently and relentlessly subverting agency power. But in practice, Loper Bright may largely collapse upon itself for one simple reason: in addition to being poorly reasoned, it is also largely useless. (Like that apple peeler you bought that spends 99.9999% of its life in a high kitchen cabinet.) A basic fiction undergirds the entire case, and with no clarity to be found, federal courts across the country will often just stick with the status quo.

In Loper Bright, the Supreme Court majority grossly oversimplifies what courts are doing. The Supreme Court seems to believe that the majority of agency cases are pure questions of law, and that the remaining small minority of cases are ones in which Congress has expressly empowered an agency to interpret statutory terms. Thus, the Supreme Court has a neat and tidy solution: Loper Bright holds that the courts will decide the “legal” questions, and also follow the law by deferring when Congress has expressly mandated it. (Cases that are only about facts are not at dispute—everyone agrees courts should defer to agencies on those.) With that, they take a bow and exit, stage right. There’s just one problem: they’re not even in the right theater. Loper Bright does not speak to reality.

In reality, there is a flood of administrative law cases that the lower courts have to deal with in which the law and facts are closely intertwined – “mixed questions” as Justice Kagan calls them in her thoughtful dissent in Loper Bright. To be sure, there are sometimes cases where the issue is exclusively legal or Congress has expressly delegated power, but there are many, many cases where vague legal standards are running headlong into complex facts, and the purported “legal inquiry” actually relies primarily on facts and subject matter expertise. And agencies are far better positioned to understand vague legal standards using the factual context. This was Chevron’s raison d’etre.

One of the most shocking things about the Loper Bright decision is that it cites to – and grossly mischaracterizes – a Supreme Court case that illustrates exactly why Chevron is needed. In NLRB v. Hearst, a 1944 case, the Supreme Court had to decide whether “newsboys” were newspaper “employees” under the law. The Loper Bright majority quotes a random line in Hearst saying that courts must interpret the law, but ignores the very next line which sets up the actual outcome and substance of the case. The Hearst decision concluded that the agency was much better positioned to answer the mixed question, because the agency has the deepest understanding of many factors that Congress has in mind in writing the statute, such as “the circumstances and backgrounds of employment relationships in various industries.” The Hearst decision deferred to the agency, concluding – exactly as a court would under Chevron – that the agency’s findings had “ample basis in law.” The whole point of the Hearst case is that the court had a role – to make sure the agency stayed within the parameters of the statute – but that the exact answer would best be decided by the agency. This is the reality of what courts and agencies frequently do, and the Supreme Court’s Loper Bright opinion disingenuously ignores that reality while (astoundingly!) citing to a case that grappled with reality and came out with the opposite answer.

Let’s imagine a Medicaid example. The Medicaid statute requires that states furnish Medicaid “with reasonable promptness to all eligible individuals.” But what does that mean? Imagine a state challenging CMS policy requiring states to process applications within forty-five days. Let’s assume it was a novel case. According to Loper Bright, this is a legal question and a judge will discover that “single, best meaning” of reasonable promptness that is surely out there. But any judge who gets this case will quickly figure out that Congress had no idea what the exact answer was when they passed the law, nor will she find an exact answer no matter how many legal rocks she turns over. There simply is no exact legal answer to be found. (Maybe the judge can spin a roulette wheel to get a number?) The agency, however, came to an answer. Not the immaculate, mythical legal answer bespoken of in the legend of Loper Bright. An answer instead based in facts that makes sense of the vague legal standard. An answer developed by evaluating important factors (What are peoples’ circumstances when they apply for Medicaid? How long before delayed coverage impacts health care? What is the systems capacity of state administrative processes to effectuate coverage?) and in many cases conducting informal and formal processes to get direct feedback from all of the stakeholders involved. An answer that is a lot better than spinning a roulette wheel.

And this is why Loper Bright may in fact lead nowhere. Because most judges are honestly trying to find the best answer possible and they are certainly clever. And since Loper Bright is useless to most cases, the judges will figure out a way to get back to Chevron. They won’t mention it, because Chevron “is no longer law”, but they’ll do it. They’ll evaluate whether the agency’s process and outcome are within the bounds of the law and rational, and if so, they’ll go along with the agency, perhaps carefully relying on various other cases that establish alternate bases for deference (such as Skidmore deference). Or maybe they won’t mention deference at all but their “interpretation of the law” will coincidentally match exactly what the agency did based on the agency record (et voila!). Like in a 1950s TV household where the wife explains to the husband what the family needs to do, and then the husband “decides” that that is what the family will do.

And so after Loper Bright, just as is the case now (except likely more so), policy evidence will drive progress. When courts are fumbling to find any “legal” answer in a case, policy evidence developed in the agency record will be their life raft. It will be pivotal for agencies to explicitly lean into the fact-based considerations for answering legal questions, and to do so armed with the best policy evidence possible. This means that in the coming years, the policy community will need to double-down on producing voluminous and well-researched evidence, filed in public comment processes when available, to support optimal health policy.

I don’t want to leave you with the impression that Loper Bright won’t cause problems. Most federal judges are honest brokers. But the bad ones out there will leap at the opportunity to exploit Loper Bright to ignore an agency’s well-developed answer to complex policy questions in favor of their own deeply politicized “legal” answer. The worst of these judges will issue nationwide injunctions, effectively one-man vetoes of entire agencies in real time based on personal opinion. This will sow some chaos, and when combined with the numerous other Supreme Court decisions weakening agencies, create a sand-in-the-gears of agency action effect. Perhaps that is exactly what the Supreme Court intended. But none of this side show changes the work that needs to be done: agencies must take the actions needed to improve Medicaid and the policy community must develop and promote the evidence that supports the policy basis for those actions, and when we all do our job, the courts will have to (and usually will) find a way past Loper Bright to uphold the best policy answer the agency develops. It’s time to get to work.