Restoring the Constitution’s Separation of Powers: Chevron’s Demise and the Promise of Loper Bright 

On September 17, 1787—today, 238 years ago—a momentous event took place in Philadelphia, Pennsylvania. Delegates from the thirteen States, who were assembled in convention, signed our United States Constitution. Although the Constitution was not ratified until the next year, its completion and presentation to the States for adoption marked the beginning of a radical restructuring of our national government. 

The Framers’ ingenious design for our constitutional system divided federal power between three distinct but coequal branches: the Executive, the Legislative, and the Judicial. This separation of government authority was intended to safeguard liberty and minimize the infringement of rights. The idea is simple: If one branch has the power, say, to write the law and define its meaning when controversies arise, there is an ever-present danger that abuses of that power will go unchecked. It is better for those who write the law—Congress—those who implement it—the President—and those who tell us what it means—the courts—to keep to their proper roles. 

Yet, for the last four decades, one Supreme Court doctrine—Chevron deference—tended to upend the Framers’ careful balance, empowering unelected bureaucrats to interpret and even rewrite the laws that govern us, while escaping any serious judicial oversight. This Constitution Day 2025, we mark not only the anniversary of our founding charter but the first full year (and some change) since the Supreme Court’s landmark decision in Loper Bright Enterprises v. Raimondo. Not only did Loper Bright definitively overrule Chevron deference, but it restored federal judges to their proper role and has offered Congress an opportunity to reclaim its proper constitutional authority, too. 

Chevron Deference: A Misstep of Unconstitutional Proportions

In 1984, the Supreme Court decided a Clean Air Act case called Chevron U.S.A. v. Natural Resources Defense Council. The Chevron case involved a challenge to the Environmental Protection Agency’s interpretation of the phrase “stationary source.” The Court’s precise holding with respect to that phrase is ultimately unimportant. The case is remembered—and, in fact, transformed federal administrative law—for the way it instructed judges to defer to “reasonable” agency interpretations of ambiguous laws, at least so long as Congress had not “directly spoken to the precise question at issue.” This two-step framework became the default approach for courts to review federal regulations. 

Chevron’s flaws soon became impossible to ignore. To begin with, the Court had never grappled with the actual text of the Administrative Procedure Act (“APA”), which sets the standard of review for courts in administrative-law cases. And it never persuasively justified the legal fiction at the heart of the Chevron methodology, namely, the idea that Congress ever intends to delegate authority impliedly to the Executive Branch through ambiguous drafting or omission. If that were not enough, lower courts also never uniformly understood and applied Chevron, which led to inconsistency and unpredictability in the law. 

The most compelling objections to Chevron deference, however, highlighted the doctrine’s constitutional infirmities, including its distortion of the separation of powers.  For one, Chevron deference entailed judicial abdication and the transfer of power from courts to agencies, which were effectively allowed to “say what the law is,” a core judicial function. By directing courts to uphold “reasonable” agency interpretations, even if a judge believes another reading of the law is better, Chevron undermined the judiciary’s independence and role as a meaningful check on executive power. Chevron also created due-process concerns, as one prominent scholar has argued, by demanding “precommitment” in favor of the government’s “judgments about the law.”  Justice Gorsuch summed up these arguments well when he objected to the Supreme Court’s refusal to take-up Buffington v. McDonough and revisit the Chevron doctrine: 

Under a broad reading of Chevron . . . courts often fail to deliver on . . . [the Constitution’s] promises [of neutral judges deciding “what the law is”]. Rather than provide individuals with the best understanding of their rights and duties under a law a neutral magistrate can muster, we outsource our interpretive responsibilities. Rather than say what the law is, we tell those who come before us to go ask a bureaucrat. . . . We place a finger on the scales of justice in favor of the most powerful of litigants, the federal government, and against everyone else. 

In addition to neutering the ability of an independent judiciary to serve as a check on regulatory overreach, Chevron opened the door to agencies pushing the limits of their authority, advocating for policy changes under the guise of interpretation and regulatory implementation, all while pointing to statutory ambiguities or silence as the grounds for those novel assertions of power. Of course, that raised non-delegation concerns. As Justice Clarence Thomas explained in Michigan v. Environmental Protection Agency, once courts “give the ‘force of law’ to agency pronouncements on matters of private conduct as to which ‘Congress did not actually have an intent”—which is the whole point of the Chevron doctrine and its “ambiguity” trigger—they “permit a body other than Congress to perform a function that requires an exercise of the legislative power.”  Congressional complacency in asserting its Article I authority, which was fueled in large part by Chevron’s perverse incentives for legislators to keep laws ambiguous in the hopes an aligned White House could achieve favorable policy results, only made things worse. 

Loper Bright: Restoring the Judicial Role and Opening the Door for Congress 

In June 2024, the Supreme Court overruled the Chevron-deference doctrine in Loper Bright Enterprises v. Raimondo. This historic case involved a challenge to a burdensome regulation that requires Atlantic herring fishermen to pay for government-mandated monitors to ride their boats and watch them fish. The government estimated the regulation would cost upwards of $710 per sea day for most vessels, resulting in a 20% reduction in annual returns. Yet Congress never gave the National Marine Fisheries Service express authority to pass monitoring costs onto fishermen. The agency based its authority on the fact that Congress had not expressly prohibited it from requiring industry funding. And because the law was “silent,” or at least “ambiguous,” Chevron required the courts to defer the Executive Branch’s interpretation of its own authority. 

The Supreme Court rejected this approach, repudiating Chevron once and for all.  Chief Justice Roberts explained the Framers “envisioned that the final ‘interpretation of the laws’ would be ‘the proper and peculiar province of the courts,’” and that such interpretation would proceed “independent of influence from the political branches.”  Although courts might still afford “respect” to an agency’s reading of the law, such respect can never displace a court’s best judgment of legal meaning. Congress hardly intended to disrupt this traditional understanding of the judicial role—an understanding that follows from constitutional first principles—when it passed the APA. Chevron itself was the point of deviation—deviation from the APA and deviation from the separation of powers. Chevron had turned the “scheme for judicial review . . . upside down.”  But no longer. 

One Year Later . . . Cleaning Up Chevron’s Mess 

Loper Bright has been cited more than a thousand times by federal and state courts over the past year. In many cases, those citations are relatively unimportant. But it would be naïve to expect too much transformative change in the wake of overturning a forty-year-old interpretive methodology with totemic status. That said, there have been some substantive developments across all three branches of government that have awesome implications for the restoration of the separation of powers. 

As far as the Judiciary is concerned, the Supreme Court has continued to explain what the new Loper Bright standard entails. In Seven County Infrastructure Coalition, for example, it reiterated this means de novo review. In cases like McLaughlin Chiropractic, VanDerStok, and Kennedy, it emphasized the role of the traditional canons of statutory interpretation and clarified what “respect” for agency interpretations should look like. And in Consumers’ Research, it suggested how Loper Bright might go together with the Major-Questions Doctrine as an important guardrail for policing Congress’s delegations —a suggestion borne out most recently by the Federal Circuit’s citation to Loper Bright in the fight over emergency tariff authority. 

The lower courts have published important decisions with constitutional overtones, too. The Eighth Circuit struck down the Biden Administration’s student loan forgiveness scheme in Missouri v. Trump. The Sixth Circuit invalidated the Federal Communications Commission’s net-neutrality regulations in In re: MCP No. 185. And just last week, in Iowa v. Wright, the Eighth Circuit vacated a Biden-era electric vehicle subsidy regulation. Other impactful decisions are on the horizon. 

Loper Bright’s impact on Congress has been more subdued. The end of Chevron undoubtedly represents an opportunity for Congress to reassert its Article I authority. But Congress must take the initiative to legislate more frequently and with greater specificity. For too long, Chevron allowed lawmakers to pass ambiguous laws and rely on agencies to fill in the details.  When novel issues arose, agencies would try to justify new regulations based on antiquated laws. A healthy and responsive government should not work that way. To be sure, if Congress is going to write better laws, or even revisit its older delegations through the reauthorization of existing statutes, it will need to build capacity and force cultural change. But that investment would be worthwhile. 

Certain legislators have shown they are up to the task. Senator Eric Schmitt, for example, organized a “Post-Chevron Working Group,” which published a lengthy report detailing how Congress can shape the future of the administrative state by building capacity, retaining expert staff, conducting aggressive oversight of a hostile bureaucracy, and writing better laws. Former members and outside experts at the Bipartisan Policy Center released similar practical recommendations. In the short term, Congress might consider reforms that would have an immediate impact on the regulatory state, including the REINS Act, which would require legislative approval of significant regulations; the GOOD Act, which would increase transparency of sub-regulatory guidance; and the REVIEW Act, which would reform the Congressional Review Act to make it easier for Congress to repeal agency rules.  These reforms would help get Congress more accustomed to overseeing the regulatory state. 

Perhaps the most exciting developments in the wake of Loper Bright, however, have been the actions taken by the Trump Administration to operationalize Loper Bright as part of an aggressive deregulatory agenda. Executive Order 14,219 (“Ensuring Lawful Governance and Implementing the President’s ‘Department of Government Efficiency Deregulatory’ Initiative”) directs agencies to evaluate existing regulations under Loper Bright, among other recent Supreme Court decisions, and to start the process of rescinding facially unlawful rules without notice-and-comment. An April 9, 2025 Presidential Memorandum and accompanying fact sheet explain the goal: 

[A]gencies are to repeal any regulation that is not consonant with the “single, best meaning” of the statute authorizing it.  Agencies are also to repeal any regulation that was promulgated in reliance on the Chevron doctrine and that could be defended only by relying on Chevron deference. 

At present, there are only a handful of prominent examples of Executive Order 14,219—or other presidential deregulatory initiatives—being implemented.  Agencies are still preparing their rulemakings. But significant steps have been taken. The Environmental Protection Agency, for example, has proposed to repeal greenhouse gas emissions standards for fossil fuel-fired power plants. And the U.S. Fish and Wildlife Service is rescinding its regulatory definition of “harm” under the Endangered Species Act—a definition that had been a source of major litigation under Chevron. This has all been possible, in large part, due to Loper Bright. 

Conclusion 

On this Constitution Day, we should remember that the Supreme Court’s decision in Loper Bright reaffirms our founding principles. By ending Chevron deference, the Court has helped to restore the separation of powers, strengthen judicial independence, and offer Congress a chance to reclaim its Article I authority. 

Federal agencies are now more firmly subject to the rule of law. They must operate within clear bounds, and courts must ensure those bounds are respected. The Trump Administration’s deregulatory efforts underscore the significance of Loper Bright as a catalyst for change, for resizing the administrative state, and eliminating regulatory burdens to unleash a more prosperous America. 

The work is not finished. The Supreme Court continues to bring the federal bureaucracy and, more generally, administrative law in line with constitutional principles. Congress must seize this moment to legislate with clarity, precision, and accountability. Only then can we fully realize the promise of the Constitution—a government of laws, not of men. 

Happy Constitution Day! 

Ryan P. Mulvey is Senior Policy Counsel at Americans for Prosperity Foundation. In his role at Cause of Action Institute, he has served as lead counsel for the fishermen in Loper Bright Enterprises v. Raimondo from the beginning of the case to the present.