Forthcoming ACUS Paper Explores Whether Agency Experts Are “Unbothered” By Loper Bright

In a recent post for the Yale Journal on Regulation’s “Notice & Comment” blog, law professor Daniel Deacon has previewed a draft report prepared for the Administrative Conference of the United States entitled “Drafting Regulatory Preambles.”  Described as an exploration of “best practices for drafting regulatory preambles in light of recent developments in judicial review of agency action,” the paper proposes to provide insight into how the Supreme Court’s overruling of Chevron deference in Loper Bright Enterprises v. Raimondo has impacted behavior among lawyers and policy experts in the federal bureaucracy.

Some highlights from the blog post (with emphasis added):

I interviewed nineteen current and former agency employees (all career) with experience writing the explanations that accompany agency rules.  [. . .]

[R]ule drafters fairly uniformly reported that they had ceased relying on Chevron years prior to its formal overruling.  Instead, rule drafters had long felt it necessary to defend what the agency believed to be the best interpretation of the statute, invoking Chevron deference in the alternative if at all.  [. . .]

Some of the rule drafters (who were nearly all lawyers) expressed the view that the demise of Chevron did affect how they discussed issues with agency policymakers.  [. . .]

At the same time, rule drafters by and large denied that Loper Bright represented a true sea change.  For one, especially in the cases that would have formerly been governed by Chevron step two, an agency may often retain the ability to make a reasonable case for multiple different interpretations being the “best interpretation.”  Thus, Loper Bright does not necessarily or inevitably put agencies in a straitjacket when it comes to contestable issues of statutory interpretation.

In addition, a number of rule drafters were of the opinion that their agency continued to possess delegated discretionary authority over many matters.  Indeed, some rule drafters were completely unbothered by Loper Bright because they believed their agency was almost always operating pursuant to a relatively clear delegation of authority over the matter in question.

Professor Deacon notes several drafters believed it “increasingly important” to “identify specific delegations,” as opposed to relying on general grants of regulatory authority.  Agency drafters also appeared to appreciate the importance of “lead[ing] with textualism’s traditional tools” before expounding on purposive or policy-based arguments.  Finally, experts “differed” somewhat on whether to frame agency interpretations “in terms of Skidmore’s factors or to reference Loper Bright’s occasional nods towards agencies’ expertise.”

Overall, Professor Deacon’s lengthy paper appears to paint a picture of continuity rather than disruption.  Such an account deserves careful consideration.  There are, however, important questions about what might have been left unexplored.  I offer two broad, preliminary observations on that front.

First, aside from concerns about the appropriateness of generalizing anything from interviews with only nineteen employees across a vast federal bureaucracy, it is striking that Professor Deacon fails to mention any of the important deregulatory orders promulgated by the Trump Administration during this second term.  Those orders include (1) Executive Order 14219, (2) the April 9, 2025 Presidential Memorandum on the Repeal of Unlawful Regulations, and (3) OMB-OIRA Memorandum M-25-36 on “Streamlining the Review of Deregulatory Actions.”  Whatever limited practical effect Loper Bright might have had on civil servants in the waning months of the Biden White House, it seems unlikely that President Trump’s deregulatory agenda, which expressly operationalizes the Loper Bright holding, has not impacted how agency drafters prepare preambles, let alone other regulatory (or sub-regulatory) materials.  Professor Deacon’s apparent decision to avoid exploring these developments—despite the fact his research continued through the end of 2025—arguably diminishes the value of drawing conclusions from drafters’ attitudes about the import of Loper Bright.

Second, courts have almost universally treated the overruling of Chevron deference as significant.  The Fifth Circuit has called it a “landmark” decision, for example, and the Fourth Circuit described it as ushering in a “sea change” in administrative law.  With that in mind, it may be that Professor Deacon’s findings are less predictive about the direction of regulatory drafting as they are revelatory of the philosophical dispositions of higher-level bureaucrats, as well as the institutional interests of the agencies they serve.  It is unsurprising that experts vested in preserving an agency’s understanding of the scope of its own authority would dismiss or underestimate the impact of Loper Bright.  One important question, then, is whether the habits of those experts in the immediate wake of Loper Bright carry much weight in anticipating normative drafting trends that will develop within agencies, especially as more recent rulemakings are challenged in court.

The government’s handling of the Loper Bright case provides a useful illustration.  Although the National Oceanic and Atmospheric Administration always insisted that its reading of the Magnuson-Stevens Act was defensible at Step One—a position the D.C. Circuit rejected—the agency nevertheless took advantage of the deference required under the Chevron doctrine.  (This points to another interesting dynamic—that of the Department of Justice choosing to rely on Chevron regardless of whether the doctrine was considered at the drafting stage.)  And rather than seriously reconsider its interpretative position of the Act on remand, the agency simply reiterated its prior arguments.  In a sense, this may confirm Professor Deacon’s descriptive findings about why certain agency drafters feel “unbothered” by Loper Bright, especially if those experts claim to believe their regulations were always defensible on straight-forward textual grounds.  But, so far as that is true, the real implications of Loper Bright, and the lessons for future drafting, can only be driven through judicial testing.

The reception of Loper Bright, in other words, is still ongoing.  Again, this is particularly true in cases like Loper Bright, where an agency reflexively insists the law is best read to delegate to it some level of discretionary authority.  Some of Professor Deacon’s respondents acknowledge the underlying complexity on this front.  They distinguish between reliance on specific delegations versus more general housekeeping provisions.  Yet this only serves to underscore why it may be too early to draw firm conclusions about the civil service’s adaptation to the new Loper Bright paradigm.

Ryan P. Mulvey is Senior Policy Counsel at Americans for Prosperity Foundation.  In his role at Cause of Action Institute, Ryan has served as lead counsel on Loper Bright Enterprises v. Raimondo since the initiation of the case.