The Eighth Circuit’s recent decision in Corner Post, Inc. v. Board of Governors of the Federal Reserve rejecting the Fed’s request for deference to its Chevron-era regulation setting a 21-cent cap for credit card swipe fees highlights the continuing practical impact of Loper Bright’s changes to the statutory interpretation landscape. The Eighth Circuit’s ruling showcases how Loper Bright’s can play an outcome-determinative role in regulatory challenges. It also illustrates how Loper Bright operates in tandem with the Supreme Court’s decision in Corner Post v. Board of Governors opening up the courthouse doors to allow newly harmed parties like Corner Post, including those that can only be justified under the Chevron regime repudiated by Loper Bright, such as the regulation at issue in this case.  

Two weeks ago, the Supreme Court heard oral argument in Beaird v. United States, a case in which it will consider whether Stinson v. United States still correctly states the rule for the level of deference owed to the U.S. Sentencing Commission’s commentary on its Sentencing Guidelines.  Most of the justices appeared reticent to upset Stinson, notwithstanding the overruling of Chevron deference two years ago in Loper Bright.  Justice Gorsuch, however, signaled support for the petitioner while raising some deeper questions left unresolved by Loper Bright regarding the continued viability of implied delegation. 

Case Background: Unlawful Gun Possession 

As I previously recounted, Beaird involves an individual—Kendrick Beaird—who pleaded guilty to unlawful gun possession.  During sentencing, Mr. Beaird objected to a sentencing enhancement predicated on the attachment of a seventeen-round magazine to his semiautomatic firearm.  He specifically argued the Commission’s definition of a “large capacity magazine” impermissibly expanded the scope of the Guidelines.  The district court judge overruled that objection, and concluded Mr. Beaird should face up to seventy-eight months of imprisonment.  In a short, unpublished per curiam opinion, the Fifth Circuit affirmed the judgment of the district court. 

Why Stinson Deference is Under Review 

Although Chevron deference no longer exists, federal courts continue to apply other deference doctrines that the Supreme Court has yet to revisit.  Earlier this month, for example, the Court declined to take up PG Publishing Co. v. National Labor Relations Board, which sought review of the “highly deferential” treatment given to the NLRB’s interpretations of its own statutory authority, the National Labor Relations Act.  Beaird is an exception—the Court has expressly agreed to reconsider Stinson deference. 

Again, Stinson deference presently requires courts to defer to the Sentencing Commission’s interpretation of its Guidelines, as reflected in the Commission’s official commentary.  Yet there is significant tension between the reasoning underlying Loper Bright and the notion that courts ought to defer—in the criminal context, no less—to interpretive guidelines developed by an entity neither subject to executive-branch supervision nor directly answerable to Congress.  Additionally, Stinson not only challenges the interpretive role of the judiciary, as instantiated by federal judges in discrete cases, it can also cut against the rule of lenity.   

If judges are supposed to be in the business of exercising independent judgment and articulating the best meaning of the law, especially when individual freedom and criminal penalties are on the line, the Commission’s view about the meaning of the Guidelines should matter little, except perhaps as evidence of the original public meaning of the statutes relevant to a case.  Numerous amici made this argument (e.g., here and here), while highlighting how Kisor v. Wilkie and the displacement of Auer/Seminole Rock has undermined the doctrinal foundations of Stinson deference (e.g., here)—the very position the federal government has taken in the case. 

And Yet the Court Seems Unbothered

Most of the justices who explored the impact of Loper Bright during oral argument doubted it had any real relevance to the viability of Stinson deference moving forward.  Chief Justice Roberts, for example, noted many of the concerns animating Loper Bright were inapposite in the sentencing context precisely because the Guidelines constitute “non-binding advice.”  Here, the Chief was referring to the Court’s 2005 decision in United States v. Booker, in which it determined that mandatory use of the Guidelines was unconstitutional.  Justice Kavanaugh made this same point, describing Booker as “mitigat[ing] the concerns” surrounding the Commission’s commentary somehow binding judges’ hands. 

The court-appointed amicus, Anthony Dick, continued that theme.  While conceding that, per Loper Bright, “[i]t is emphatically the province of the judiciary to say what the law is,” Mr. Dick maintained the Commission’s interpretative commentary was purely “advisory” and not an explanation of “what the law is but, rather, what is the non-binding advice that the Commission is offering[.]”  In other words, while the commentary might be “binding on what the Commission’s advice means,” “[i]t’s not binding in the sense that courts have to follow it.”  Together with the fact the Commission is not subject to the Administrative Procedure Act, Mr. Dick insisted Loper Bright’s holding on the proper standard of review under Section 706 should be entirely irrelevant to the continued viability of Stinson deference. 

Except for Justice Gorsuch 

Justice Gorsuch, by contrast, appeared deeply skeptical of Stinson, both doctrinally and practically.  When questioning petitioner’s counsel, for example, he asked whether the statutory silence in the Sentencing Reform Act that gave rise to the implicit delegation on which Stinson was based could be sustained after Loper Bright.  In a later colloquy with counsel for the government, Justice Gorsuch straightforward queried how, “as an original matter,” “you [can] defend silence . . . as a delegation and ambiguity as a trigger[.]”  Finally, when engaging with the court-appointed amicus, he asked: “[W]here are there any words [in the statute] saying that the Sentencing Commission shall have something binding . . . in policy statements, let alone commentary”? 

Justice Gorsuch relatedly highlighted the potential implications of preserving a sort of implied authority for issuing interpretive guidance based on an express delegation: 

If we found that were enough to commit to the Commission the power to issue . . . binding interpretations [of the Guidelines], what would be left of Loper Bright?  . . .  [D]o[n’t] . . . most agencies have the power to issue interpretive rules and guidance documents? 

Indeed, Justice Gorsuch called it a “topsy-turvy world” where, post-Booker, the Commission’s “commentary is binding” on courts’ reading of the Guidelines, though “the guidelines [themselves] aren’t” mandatory—a situation he further described as “creeping up to a Booker problem again.”  The court-appointed amicus, on this point, suggested that “interpreting a guideline is part and parcel of the power to apply the guideline because, if you don’t interpret the guideline to know what it means, you can’t know how it applies.”  (Justice Jackson would agree, having claimed at the outset of argument that the “guidelines and commentary are “inextricably linked”!) 

Justice Gorsuch’s questions highlight perhaps the strongest objection to Stinson, namely, reliance on presumptions and implied delegation that sit uneasily with the central reasoning of Loper Bright.  Even in the context of an express statutory delegation for the drafting of the Guidelines, it is wrong to require judges to defer also to the Sentencing Commission’s interpretation of those guidelines, which undoubtedly implicate legal (though not necessarily statutory) questions.  Further, there is a sense in which these concerns are conceptually related to objections regarding the danger of “housekeeping” delegations.  Courts will sometimes treat general delegations to issue interpretative or procedural rules as authority for an agency to engage in legislative rulemaking beyond the limits anticipated by Congress.  Yet, as with any species of implied delegation, serious interpretive problems abound.   

The Chief Justice cautioned in Loper Bright that “statutory ambiguity . . . is not a reliable indicator of actual delegations of discretionary authority to agencies,” and the “very point of the traditional tools of statutory construction . . . is to resolve [such] statutory ambiguities,” including “when the ambiguity is about the scope of an agency own power.”  Relying on implied delegation, whether based on textual ambiguity or—worse yet—silence undermines Loper Bright so far as it permits judges to pass the buck on important interpretive questions.  That gets to the heart of the matter—the underlying importance of Article III for framing the judicial role.  And this concern over ownership of interpretation is hardly absent when dealing with the Sentencing Commission, its guidelines, and its commentary. 

Ryan P. Mulvey is senior policy counsel at Americans for Prosperity Foundation. 

The Center for Progressive Reform (“CPR”) has published a second report that analyzes the impact of the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo.  That report argues Loper Bright is “providing a vehicle for judicial activism” with “troubling implications for the future of U.S. democracy.”  But CPR’s dataset is too limited to support its conclusions, and its substantive analysis rests on a mistaken understanding of how courts are supposed to function and how to apply Loper Bright.  Of note, CPR’s new findings are built on an earlier report that was published in June 2026, which sought to survey initial reception of Loper Bright by the lower courts.  I published a thorough critique of that initial work. 

CPR’s Claim: Loper Bright = Judicial Activism 

CPR’s overarching thesis is that Loper Bright has “transfer[ed] a massive amount of power from the more democratically accountable branches . . . to the judiciary,” and is a vehicle for judges to more easily reject regulations that align with their policy preferences, or alternatively, to affirm those with which they agree.  Yet CPR relied on the same limited dataset it did for its initial report, with several cases excluded because they were “resolved on the basis of statutory stare decisis,” decided by magistrate judges, or involved application of so-called Skidmore deference.  Setting aside the small dataset, what is CPR’s conclusion?  That “Republican judges” are more likely to resolve cases based on the “unambiguous” meaning of statutory terms and to reject rules promulgated during Democratic presidential administration.  The same “pattern,” moreover, “only partially h[o]ld[s] for Democratic judges.” 

Of the 39 cases involving a Republican judge reviewing a Democratic interpretation, the judge framed the disputed term as being unambiguous 12 times (31% of the total).  In contrast, Republican judges construed the disputed term as conferring discretion 7 times (18% of the total) in such cases.  

Republican judges did not seem to engage in the expected strategic behavior when confronted with cases involving a Republican interpretation, however.  Of these 14 cases, the judge construed the disputed term as conferring discretion only 3 times (21% of the total).  Significantly, this was the same number of times the judge framed the term as being unambiguous (3 times, or 21% of the total). 

Similarly, this pattern only partially held for Democratic judges.  Of the 12 cases involving Democratic judges reviewing Republican interpretations, the Democratic judge ultimately framed the disputed term as unambiguous only 2 times (17% of total).  Surprisingly, the Democratic judge was slightly more likely to construe the disputed term in these cases as conferring discretion (3 times, or 25% of the total). 

Democratic judges did appear to behave more strategically in cases involving Democratic interpretations, however.  Out of 18 such cases, they construed the disputed term as conferring discretion 3 times (17% of total).  This occurred slightly more frequently than instances in which the Democratic judge framed the disputed term as being unambiguous (2 times, or 11% of the total). 

Reasons for Doubting CPR’s Claims 

As with its first report, there are serious methodological and doctrinal problems that call into question the usefulness of CPR’s claims.  Let’s start with the former.  CPR readily acknowledges the limitations of its dataset, which is “comprised [of] only 83 cases” decided during “the earliest days of the new Loper Bright regime.”  Yet, as of today, there are nearly 3,000 federal district court decisions that cite Loper Bright.  Although many of these are unlikely to involve substantive application of the new Loper Bright framework for de novo review, CPR’s dataset is woefully inadequate to support its broad claims about judicial behavior.   

Relatedly, CPR’s “forum shopping” claims are not persuasively established by its own data.  First, CPR’s report does not account for the absolute number of regulations under review and whether they were the products of “Democratic policies.”  In other words, CPR never establishes baseline expectations.  CPR’s own graphs show that most of the cases in its dataset involved regulations promulgated by Democratic administrations.  The data are not so much evidence of “forum shopping” as they are proof of complainants’ interest in challenging rules that are more likely—given the philosophical alignment of most Democratic administrations—to have stretched agency authority by relying on statutory ambiguity or silence.  Those are exactly the sorts of regulations that might have triggered Chevron Step 2 analysis, and which are now prime for revisiting.   

Second, the report fails to address the overall composition of the district courts in which the cases comprising the dataset were filed.  Seeing as cases are randomly assigned at the district court-level, it is unclear how any reliable conclusions can be drawn without inquiring with specific plaintiffs their venue preferences.  If anything, the authors’ claims on this front would have been more interesting if they had focused on the circuits in which cases tended to be filed, rather than the political affiliation of any individual district judge.  Although it is true that those seeking judicial review of agency actions are likely to seek advantageous fora.  

The most problematic aspects of CPR’s report, however, are doctrinal.  And, on this front, my criticisms remain unchanged.  First, the report mischaracterizes the Loper Bright framework.  The authors conceptualize de novo review as first inquiring into “whether statutory stare decisis governs a case,” then identifying ambiguous statutory terms, and finally, in the face of ambiguity, considering whether such ambiguity “confers discretion to the agency.”  Only after exhausting these steps should a judge “[d]etermine if the agency’s interpretation of a disputed ambiguous term matches the court’s best reading,” while also accounting for “Skidmore respect.” 

None of this can be found in Loper Bright.  To start, stare decisis does not function as an exception to de novo review.  Although a prior decision may end up being dispositive in a given case—and not necessarily because it got an interpretive question correct!—stare decisis could just as well be considered at the end of a court’s application of Loper Bright as a reason not to upset precedent.  More concerningly, there is no reason under Loper Bright for courts to set about trying to locate textual ambiguity.  The Loper Bright Court was clear that the overruling of Chevron deference meant the end of implicit delegations based on interpretive presumptions grounded in ostensible ambiguity.  As the Chief Justice explained, it is a court’s role to provide an independent judgment as to the best reading of the law.  Under CPR’s approach, by contrast, statutory ambiguity remains the central trigger for agency discretion, which reintroduced the distortion that necessitated Loper Bright in the first place.  Finally, the report misconstrues the role of express delegations that confer regulatory discretion to an agency.  Under Loper Bright, courts retain responsibility for ensuring that a delegation is properly defined and bounded.  This involves an act of judicial engagement that leaves little room for deference to an agency. 

Conclusion 

As before, CPR’s dataset hardly suggests a massive shift towards greater judicial activism, let alone judicially led deconstruction of the administrative state.  To the extent there is any shift in how judges tend to be ruling in administrative law cases, the most reasonable explanation is they are no longer deferring to agencies.  Good!  Whether one supports the result as a matter of policy, the end of Chevron deference has restored to courts the authority to decide questions of law, as required by the Administrative Procedure Act.  

To the extent there is any discernable difference in how Loper Bright is being interpreted and implemented, it is more likely that is the result of an underlying conflict of vision between conservative and progressive jurists.  CPR admits, for example, that “Republican judges were notably reluctant to construe Republican interpretations of disputed terms as conferring discretion, even though doing so would make it easier for them to uphold those interpretations.”  That is, their “stance” was entirely “consistent with conservatives’ longstanding opposition to the Chevron deference doctrine.”  Although CPR dismisses this principled commitment to legal interpretation as merely “an adequate alternative means” to “achiev[ing] . . . ideological ends,” that dismissive conclusion seems quite unfair.  As Loper Bright’s conceptualization of the judicial role continues to mature and be elaborated upon, the kind of partisan analysis undertaken by CPR will become ever more unpersuasive. 

Ryan P. Mulvey is senior policy counsel at Americans for Prosperity Foundation. 

The Supreme Court has declined to take up PG Publishing Co. v. NLRB, a case in which a Pittsburgh newspaper sought review of the “highly deferential” treatment given by the Third Circuit to the National Labor Relations Board’s interpretation of its own statutory authority.  The newspaper’s petition for writ of certiorari was denied on October 5^th.  The Court’s decision leaves unresolved the widening disagreement among the courts of appeals over the continuing legitimacy and scope of deference to the NLRB following the overruling of the Chevron doctrine in Loper Bright Enterprises v. Raimondo. 

Earlier this summer, I highlighted the D.C. Circuit’s decision in Hospital Menonita and its rejection of deference to the National Labor Relations Board.  Last week, in Siren Retail Corporation v. NLRB, the Second Circuit joined the ranks of the Fourth, Fifth, Sixth, Tenth, and D.C. Circuits by emphasizing the judiciary’s obligation, after Loper Bright, to exercise independent judgment when determining the scope of agency authority, even under pre-APA organic statutes like the National Labor Relations Act.  This is an important development that demonstrates how Loper Bright is reshaping the law beyond the APA and the standard of review set out in 5 U.S.C. § 706.  There is growing consensus that Loper Bright has constitutional relevance for understanding the judiciary’s responsibility for determining what the law means. 

One of the more doctrinally vexing passages in Loper Bright Enterprises v. Raimondo is the Supreme Court’s admonition that, notwithstanding the significant doctrinal change caused by the overruling of Chevron, “holdings of those cases” previously decided under that interpretive framework would “still [be] subject to statutory stare decisis.”  As Chief Justice Roberts explained, “[m]ere reliance on Chevron cannot substitute a ‘special justification’ for overruling” a prior holding, “because to say a precedent relied on Chevron is, at best ‘just an argument that the precedent was wrongly decided.’”  These statements left much unanswered, and two years later, the lower courts continue to grapple with how to apply the principle of stare decisis to Chevron Step-Two precedents.  The Fourth Circuit’s recent decision in Yanez Piedra v. Blanche provides an interesting illustration of how one court has sought to resolve such questions while simultaneously highlighting various possible interpretations of the Supreme Court’s instructions.