Implicit Delegation After Loper Bright: The Case for Reviving the Gray Doctrine

Key Takeaways

• Loper Bright allows limited implicit delegation to agencies
• Gray doctrine presumes agency line‑drawing authority for vague statutory terms
• Courts should follow four‑step framework integrating Gray into Loper Bright
• Applying Gray reduces judicial guesswork and aligns with APA §706
• Agencies retain reasonable‑deference even without formal rulemaking

Pulse Analysis

The *Loper Bright* ruling marked a turning point in administrative law, dismantling Chevron’s all‑encompassing presumption that agencies should automatically inherit ambiguous statutory authority. While the Court reaffirmed the need for a “single best meaning,” it also acknowledged that some statutes inherently grant agencies flexibility. This creates a vacuum for lower courts, which now must balance respect for agency expertise with the duty to interpret statutes independently. The decision’s ambiguity has sparked scholarly debate about the proper scope of judicial deference in the post‑Chevron era.

Enter the *Gray* doctrine, a pre‑Chevron legacy that distinguishes between two types of statutory ambiguity. When Congress uses imprecise terms—such as “small,” “reasonable,” or “appropriate”—the doctrine presumes an implicit delegation of line‑drawing authority to the responsible agency, provided the agency follows a formal decision‑making process. Practical examples abound, from the Marine Mammal Protection Act’s “small numbers” threshold to labor regulations defining “employer.” In these contexts, agencies are better positioned to balance policy goals and technical nuances than courts, which lack the institutional competence to make granular determinations.

Adopting a four‑step framework that incorporates *Gray* into *Loper Bright* offers a clear roadmap: first, identify any express delegation; second, resolve pure legal questions; third, assess whether residual ambiguity involves an imprecise term warranting implied delegation; and fourth, defer to the agency’s reasonable line‑drawing. This approach aligns with APA §706, curtails judicial speculation, and promotes efficient governance. As lower courts begin to shape the post‑*Loper Bright* doctrine, embracing the *Gray* doctrine could standardize review, reduce litigation costs, and preserve the balance between legislative intent and administrative expertise.