Will Salerno Replace Chevron?

I will grouse a bit more about VanDerStock. If our case was such a loser, it should have been easy enough for the Court to reject all of our arguments, and find the government had the best reading of the statute. That was the upshot of Loper Bright. Instead, for reasons that continue to confound me, Justice Gorsuch of all people decided to extend the Salerno standard to administrative challenges, thus greenlighting for the government a doctrine far more deferential than Chevron. I vigorously disagree with Bostock and McGirt, but understand why Gorsuch did what he did. But for the life of me, I cannot fathom why VanDerStock came out the way it did. Whatever good was done by jettisoning Chevron has now been unraveled.

And you don’t have to take my word for it. Will Yeatman and Charles Yates of the Pacific Legal Foundation query if VanDerStock is an “accidental landmark.” I didn’t realize that DOJ lawyers were already pushing Salerno as a Chevron alternative:

The Salerno standard is another Chevron replacement that has been shopped by the government in the wake of Loper Bright. For example, last year in a challenge brought by Pacific Legal Foundation (where we work) to a 2023 Environmental Protection Agency and Department of the Army Clean Water Act regulation, the Justice Department invoked the “no set of circumstances”standard as a reason for that challenge to fail. Of course, the Salerno approach is unique among these Chevron substitutes, in that the “no set of circumstances” framework is far more favorable to the government than even Chevron ever was.

For practitioners and scholars of administrative law, the crucial concrete result from VanDerStok is that the Court linked APA § 706(C) with facial review. Already, the Justice Department is on the hunt for alternatives to Chevron in a post-Loper world. After VanDerStok, we can expect government lawyers to more freely argue for facial review of an agency’s statutory interpretations under the “no set of circumstances” test.

Now, the lower courts have a green light to uphold all manner of regulations, without uttering the shibboleth of Chevron. This test cannot be beat! It is like Lee Optical deference for the APA:

Let’s assume, arguendo, a future scenario where the Supreme Court conclusively interprets APA § 706(2)(A) or (C) to require facial review, Salerno-style, for all pre-enforcement challenges. Because this “no set of circumstances” test is nearly impossible to pass, judicial review would be unavailable as an effective matter.  To put it another way, such a reading of § 706 would obviate Abbott Laboratories v. Gardner, the seminal 1967 decision on ripeness that unlocked the door to pre-enforcement review under the APA. This is not so far-fetched a scenario: it is, after all, what happened in VanDerStok, and at least a couple of circuit courts already seem open to the idea.

Is this really what Justice Gorsuch intended? Sure, the Court offered some limits on its majority opinion, but those won’t hold for long. Yeatman and Yates doubt that the majority really thought things through:

Given the case’s potential fallout, we doubt the VanDerStok majority thought through its holding, despite the sobering dissents. It makes little sense, as Professor Josh Blackman put it at the Volokh Conspiracy, for the Court to “create[] a far more powerful deference doctrine” after just ditching the Chevron doctrine.

I will end where I began. Over the past decade, the legal arguments in favor of Defense Distributed have been scoffed at. Yet, in case after case, the courts have refused to engage with our actual positions. Instead, judges on all sides of the spectrum mischaracterize the record, toy with rules about venue and jurisdiction, disregard our inconvenient arguments, and make up new doctrine. There is just such an irrational fear of people making their own firearms, that even the most ardent opponents of the administrative state will shrug. Again, though we suffered a defeat, I do not feel defeated.

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