Cary Coglianese & Daniel E. Walters write in the Yale Journal on Regulation’s Notice & Comment blog:
With the ink barely dry in Loper Bright, we are beginning to see just how unsettled, and how unpredictable, the administrative governance game can be in a post-Loper Bright world. With a new memorandum, “Directing the Repeal of Unlawful Regulations,” President Donald Trump has made a bold new move, invoking Loper Bright (as well as other recent administrative law innovations like West Virginia v. EPA’s “major questions doctrine”) to claim authority to rescind scores of existing legislative rules without even following standard administrative procedures. Under the recent presidential memorandum, once an agency determines that a legislative rule is on its face unlawful “under” Loper Bright and other recent general administrative law cases, it must “finalize rules” rescinding those regulations “without notice and comment.” Depending on how readily and extensively agencies arrive at a conclusion that existing rules are no longer legally justified, this “review-and-repeal effort” could amount to a presidential power to force the repeal of large numbers of unwanted regulations that, up to this point, would presumptively have been required to be rescinded only with deliberate care that took into account public input.
Earlier this week, on April 9, 2025, President Trump issued a new memorandum entitled “Directing the Repeal of Unlawful Regulations.” The memo, which builds on directions set out in Executive Order 14219 (Feb. 19, 2025), instructs the heads of all executive branch agencies to prepare for repealing “facially unlawful regulations” after April 20, 2025.
Agencies will moreover prioritize the repeal of regulations that run afoul of ten Supreme Court decisions identified in the memo, including Loper Bright Enterprises v. Raimondo.
Perhaps the most important—and controversial—aspect of the memo, however, is its expectation that agencies finalize regulatory rescissions “without notice and comment,” that is, without giving interested parties the opportunity to voice support or opposition to any given deregulatory action.
Section 553(b)(B) of the Administrative Procedure Act permits agencies to forego public comment when “impracticable, unnecessary, or contrary to the public interest.” The new memo arguably anticipates that all potential rescissions will qualify for this “good cause” exception because “[r]etaining and enforcing facially unlawful regulations is clearly contrary to the public interest,” and “repeal is required as a matter of law to ensure consistency” with Supreme Court precedents. Whether the exception actually applies on these grounds is likely to be the subject of various lawsuits challenging the procedural regularity of any deregulatory actions finalized by the Administration.
AFP Foundation’s Ryan Mulvey published an article in the Yale Journal on Regulation’s Notice & Comment blog on how “Loper Bright will impact FOIA jurisprudence, specifically with respect to judicial review of agency use of Exemption 3.”
“Chevron is overruled.” With these historic words, Loper Bright eliminated Chevron deference. The resolution of all legal questions—including the meaning of withholding statutes used with the FOIA—should now be resolved de novo. Whether the use of extrinsic withholding statutes in the FOIA context is best understood as a matter of “reconciliation,” which might technically trigger review under Section 706, or “incorporation,” under Section 552, the same method for judicial decision-making applies across the board.
When a requester disputes that a record is protected by Exemption 3, a court is obliged to provide its independent, best judgment about the scope and application of the underlying withholding provision. Of course, there may be instances where “respect” for the agency’s position is appropriate. And Congress could, in theory, design a withholding statute to grant an agency express discretion to set the bounds of its reach. But even then, the general rule is de novo review, and the legal limits of the scope of the statute under review remain with the court to determine.
Liberty University School of Law’s Eric Bolinder published a new paper on “Litigating After Loper.” Bolinder previously represented the fishermen in Loper while at Cause of Action Institute and argued the case before the D.C. Circuit.
Abstract
This article arrives at a critical juncture in Administrative Law and comprehensively answers two burning questions about Loper Bright Enterprises v. Raimondo, the case that overturned Chevron deference. First, what did Loper Bright change about review of agency action? Second, how should lower courts implement the decision? This paper engages a first-of-its-kind, exhaustive review of the major circuit court decisions citing Loper Bright and analyzes how influential judges, scholars, and justices have characterized the impact of the decision. The article defines what role Skidmore “deference” and the major questions doctrine should play in judicial review—while seriously questioning the long-term viability of the latter.
Using this study and foundational administrative law methodologies, I propose a three-step formulation on how judges should tackle statutory interpretation and related constitutional issues in the post-Chevron era. This approach will be helpful to courts, academics, and litigants because it is simple enough to quickly understand but contains the depth necessary to engage some of the hardest textual challenges.
This paper also soundly rebuts the argument made by influential scholars that Loper Bright is simply a rebranded Chevron that does not mark a significant change in administrative law. The article engages directly with these scholars and, through its analytical proposal, stands as a rebuke of this criticism—showing, through both real-world and hypothetical application, just how significantly Loper Bright changed things.
Finally, the article proposes that if Congress responds to the decision by expanding its grants of discretionary authority to agencies, the Supreme Court will have no choice but to both revive a robust non-delegation doctrine and more broadly apply void for vagueness to civil cases.
Pacific Legal Foundation’s Will Yeatman and Charles Yates write in Notice & Comment about how Bondi v. VanDerStok “has the potential to dent the arc of administrative law. As Justice Alito observed in his dissent, the case could end up being ‘a huge boon for the administrative state.’”
Following Loper Bright, the Justice Department started probing the viability of alternatives to the Chevron doctrine. For example, since Loper Bright, the government has reframed questions of statutory interpretation as policy decisions subject to deferential “arbitrary and capricious” review.
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.
Yesterday, in American Clinical Laboratory Ass’n v. FDA, a Texas district court properly relied on Loper Bright to reject the FDA’s attempted ultra vires expansion of its jurisdiction under the Food, Drug, and Cosmetic Act (“FDCA”) to regulate, for the first time, laboratory testing services as manufactured “devices.” Ever since City of Arlington, court deference to an agency’s assertion of the scope of its own jurisdiction had been a problem. Loper Bright is the remedy for that ailment.
Background on Lab-Developed Tests
By way of background, lab-developed tests are services administered by trained professionals and do not involve manufacturing. As the district court observed:
Laboratory-developed test services are in-house diagnostic tests developed, validated, and performed by trained professionals within a single clinical laboratory. They are performed on blood, urine, tissue, or other types of specimens at the request of an individual physician, in the context of a specific doctor-patient relationship. Treating doctors rely on such laboratory-developed test services for patient diagnosis, care, and treatment[.]
And “[f]or many years, laboratory-developed test services have been comprehensively regulated by both the States and by the Centers for Medicare and Medicaid Services[.]” But in May 2024 the FDA “issued a final rule . . . announcing its intent to treat all laboratory-developed test services as medical devices and to regulate them under the” FDCA. Plaintiffs subsequently filed a lawsuit challenging this regulation, arguing the FDA didn’t have the statutory authority to regulate testing services as manufactured “devices.”
FDA Attempt to Expand Jurisdiction on Firmer Footing Before Loper Bright
There was once a time when the FDA’s decision to unilaterally expand its regulatory jurisdiction without Congress’s permission might well have stood on firmer footing. It bears reminding that until Loper Bright, federal courts were required under Chevron to defer to federal agencies’ views on what ambiguous statutes mean, so long as those views were deemed “reasonable.” In practice, Chevron deference often meant that the judiciary would rubber-stamp an agency’s power claims. Indeed, the Supreme Court expanded the scope of the Chevron doctrine in 2013 in City of Arlington v. FCC, ruling that federal courts were required to defer to agencies’ assertions of regulatory jurisdiction under certain circumstances.
That all changed in 2024 when the Loper Bright court overruled Chevron and held that courts may no longer “defer to an agency interpretation of the law simply because a statute is ambiguous.” Perhaps seeing the writing on the wall shortly before the Court issued its opinion in Loper Bright, the FDA’s May 2024 regulation (wisely) disclaimed reliance on Chevron deference in response to a comment:
One comment argued that if the Supreme Court overturns or narrows the Chevron doctrine . . . that would “further undermine FDA’s authority to regulate LDTs and further place in question the validity of a final LDT rule.” . . . [T]he Chevron doctrine is not necessary to resolve any question of FDA’s authority over LDTs.
Notably, neither Chevron nor City of Arlington make an appearance in the district court’s decision. Instead, as the district court wrote:
In Loper Bright Enters. v. Raimondo, the Supreme Court made clear that “[c]ourts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority. . . .” The exercise of such independent judgment, the Court explained, is rooted in the “solemn duty” imposed on courts under the Constitution to “say what the law is.” (citations omitted).
The district court continued:
Applying these principles, the district court concluded the FDA’s attempted “expansion” of its “jurisdiction to cover laboratory-developed test services as medical ‘devices’ under the FDCA” is “foreclosed by the text, structure, and history of the FDCA and CLIA.” In other words, the FDA’s regulation is beyond the powers Congress granted to the agency and thus ultra vires and invalid. “Having concluded that the final rule exceeds FDA’s authority and is unlawful,” the district court vacated it.
This decision is a useful illustration of Loper’s impact—even before it was decided. If this case had been decided a decade ago, Chevron and City of Arlington would have been front and center—likely the agency’s lead argument. Today, those cases—and the agency fox-in-the-henhouse syndrome—are no more and Loper Bright rules the roost of statutory interpretation.
The U.S. Court of Appeals for the D.C. Circuit has denied the federal government’s emergency request to stay a pair of temporary restraining orders in J.G.G. v. Trump, a high-profile case challenging the Trump Administration’s invocation of the Alien Enemies Act of 1798 (“AEA”). Somewhat unexpectedly, the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo was prominently cited by Judge Patricia Millet in her concurrence. Millet offered Loper Bright as support for the notion that important questions of statutory construction—here, the scope of review under the AEA and the meaning of predicates for presidential action—were squarely within the judicial ken and thus not non-justiciable under the political-question doctrine. It remains unclear whether that assertion is correct or if Loper Bright impacts the political-question doctrine at all.
The AEA provides that “[w]henever there is a declared war between the United States and any foreign nation or government,” or an “invasion or predatory incursion” against the territory of the United States by a “foreign nation or government,” the President shall have the authority, following issuance of a “public proclamation,” to detain and remove “all native, citizens, denizens or subjects” of that hostile nation or government who are over the age of fourteen. On its face, the AEA provides the executive branch with seemingly extraordinary discretion to determine whether there is a qualifying “invasion or predatory incursion,” or even whether there exists a state of “declared war.”1 Once those preconditions are established, the President also seems to enjoy broad authority to detain and deport noncitizens to which an AEA proclamation applies.
Background on J.G.G. Case
The J.G.G. case involves five Venezuelan nationals whom the Administrations has determined are members of the international criminal gang and designated terrorist organization, “Tren de Aragua” (“TdA”). In mid-March, President Trump issued a proclamation under the AEA declaring TdA to be “perpetrating, attempting, and threatening an invasion or predatory incursion,” either “directly”—that is, as a de facto government—or as an effective agent of the Venezuelan government. The plaintiffs contest the proclamation, as applied to them, and seek a court order to prevent their removal. So far, they have successfully certified a provisional class on behalf of all suspected TdA members, as well as temporary restraining orders suspending the government’s removal efforts.
The J.G.G. case is procedurally complex and implicates deeply contested and difficult questions about jurisdiction, the availability and scope of judicial review, venue, justiciability and the political-question doctrine, and procedural regularity.
The Impact of Loper
As far as the reference Loper Bright is concerned, Judge Millet used the decision to support her argument that the government cannot sidestep judicial review of its use of the AEA by claiming sole interpretative authority for when the AEA’s preconditions are triggered:
Like Judge Henderson, Millet’s argument about the scope of review under the AEA seems to depend on her view that it is the job of courts to interpret statutory terms, even when those terms are found in statutes implicating core Article II authority. On her view, insofar as statutory language can be construed without reference to political judgments, the political-question doctrine does not apply. Thus, again citing Loper Bright, Judge Millet insists the AEA’s phrases “invasion,” “predatory incursion,” and “foreign nation or government” are all “objectively discernable from statutory text and context,” and present an question of interpretation rather than presidential discretion. “The judiciary can resolve this disagreement with settled tools of statutory construction,” she writes.
Judge Walker, who dissented from the denial of the government’s emergency motion, did not address the scope of judicial review under the AEA or whether the political-question doctrine applied. He argued instead that the government should win for a “technical, but important, reason,” namely, that the plaintiffs’ “claims sound in habeas” and should have been raised in Texas, where they are currently detained. In this regard, Walker observed that “the few [AEA] cases on the books almost invariably arose through habeas petitions[.]”
Yesterday, the Bipartisan Policy Center hosted a launch event on its report, “Legislating After Loper: Practical Solutions for a Post-Chevron Congress,” written by members of its Working Group on Congress, Courts, and Administrative Law.
The Working Group is co-chaired by Former Senators Heidi Heitkamp (D-ND) and Mel Martinez (R-FL) along with eight working group members.
The Working Group Report included four recommendations:
- Empower congressional committees in their essential role as sources of knowledge and deliberation.
Any effort to change the way Congress legislates and improves its deliberations must start with its committees. By a variety of indicators, the role of congressional committees has shifted over time, from policy development to executive branch oversight. The Working Group recommends enhancing the policy role of congressional committees by allocating additional resources to them and altering their operations.
- Expand the resources available to Congress for drafting legislation, crafting clear language, and understanding constitutional and legal dynamics around proposed bills.
The Supreme Court expects greater clarity and precision from Congress in how it writes laws and delegates implementation authority to regulatory agencies. Achieving this—and addressing other aspects of Court jurisprudence—will require additional resources to build capacity so legal and constitutional issues can be better addressed.
- Strengthen the ability of Congress to provide guidance and direction regarding statutory interpretation and congressional purpose.
Interpretation of legislation passed by Congress will receive new emphasis following recent Supreme Court decisions. We recommend steps—such as clarification of definitions and new resources—that can bolster Congress’ role in how statutes are interpreted by others, particularly agencies, courts, other government bodies, and the private sector.
- Enhance the ability of Congress to work productively with regulatory agencies by updating laws, particularly agencies’ authorizing statutes.
Congress frequently fails to reauthorize programs and agencies in a timely manner, leaving a vacuum of interpretation and implementation. We recommend actions—such as retrospective review by agencies—to enhance the learning process for Congress and agencies, so that the legislative process and subsequent implementation by the executive branch can be improved.
The Gun Control Act of 1968 (GCA) defines “firearm” to include “(A) any weapon . . . which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; [and] (B) the frame or receiver of any such weapon.” 18 U. S. C. §921(a)(3). Those engaged in importing, manufacturing, or dealing in firearms must obtain federal licenses, keep sales records, conduct background checks, and mark their products with serial numbers.
In 2022, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) adopted a rule interpreting the Act to cover weapon parts kits, and “partially complete, disassembled, or nonfunctional” frames or receivers. Plaintiff brought a facial challenge under the APA, arguing that the GCA cannot be read to reach such kits, frames, or receivers and challenging the agency’s authority to regulate them. The remedy for such as challenge would be for the court to “set aside” the rule, essentially nullifying it. This is a statutory interpretation case, not a Second Amendment case.
SCOTUS Upholds ATF Interpretation
In upholding the ATF’s interpretation of the GCA, the Court in Bondi v. Vanderstock reviewed the variety of applications the ATF made over the decades and noted that “the agency has consistently interpreted subsection (B) to reach some unfinished frames and receivers”. Thus, applying Loper Bright, the Court upheld the ATF’s interpretation, explaining that:
while “courts must exercise independent judgment in determining the meaning of statutory provisions,” the contemporary and consistent views of a coordinate branch of government can provide evidence of the law’s meaning. Loper Bright Enterprises v. Raimondo, 603 U. S. 369, 394 (2024).
The ATF’s consistent prior practice, coupled with the lack of conflict between the rule and the text of the GCA carried the day.
Other Comments
Case Western Law Professor Jonathan Adler also noted the Loper Bright citation, writing:
This reference to Loper Bright Enterprises underscores that the justices are concerned about the sort of dynamic that motivated the major questions decisions–the discovery of latent, previously undiscovered and unheralded sources of agency authority in long extant statutes–and not about disregarding agency interpretations altogether. It also suggests that the Trump Administration can expect resistance if it seeks to adopt new interpretations of old statutes, particularly where there is a long history of consistent agency understanding and application of the law in question.
Last fall, Lesko v. United States—an appeal of a decision from the Court of Federal Claims about an Office of Personnel Management (“OPM”) regulation—was argued before a panel of the U.S. Court of Appeals for the Federal Circuit. This week, however, following a sua sponte poll of the Circuit’s full bench, the court ordered the appeal to be heard en banc, directed the parties to file new briefs, and invited amicus involvement. The Circuit has instructed the renewed briefing to address the specific impact of the Supreme Court’s landmark decision in Loper Bright Enterprises v. Raimondo overruling the forty-year-old Chevron doctrine, which required federal courts to defer to federal agencies’ views on what the law is under certain circumstances.
The issue in Lesko is whether a nurse practitioner who worked at the Indian Health Service was erroneously denied enhanced pay, and therefore overtime, for working nights, Sundays, and holidays. In March 2023, the Court of Federal Claims answered that question in the negative because the nurse practitioner’s work outside of regular hours was not officially scheduled “in writing,” as required by an OPM regulation. The Lesko court reached that conclusion based on the Federal Circuit’s past decision in Doe v. United States, which found that a Federal Employees Pay Act provision authorizing overtime pay only when it’s “officially ordered or approved” was ambiguous. As a result of the ambiguity, the Doe court granted Chevron deference to an OPM regulation requiring, among other things, written authorization as a condition of receiving overtime pay.
During the pendency of Ms. Lesko’s appeal, the legal landscape has shifted. In May 2023, the Supreme Court granted cert in Loper Bright on the question of whether to overrule or clarify the Chevron-deference doctrine. As Ms. Lesko’s opening brief noted, given that Doe turned on Chevron deference, her appeal, which similarly “involve[d] issues of Chevron deference to agency regulations,” would likely be impacted by the eventual outcome in Loper Bright. Of course, that was an understatement, considering the sweep of the Supreme Court’s June 2024 decision:
Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.
Unsurprisingly, Ms. Lesko brought this development to the Federal Circuit’s attention in a FRAP 28(j) letter filed in September 2024. Oral argument was then held in October before Chief Judge Moore, Judge Chen, and Judge Stoll. But before the panel issued its opinion the full Federal Circuit decided sua sponte to hear the case en banc—that is, with all of its judges—and requested new briefs with a second argument set for September 2025.
The Federal Circuit has requested briefing on the following questions:
Specifically, the Federal Circuit has requested briefing on the following questions:
- Considering Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), how should “officially ordered or approved” in 5 U.S.C. § 5542(a) be interpreted?
- Is this a case in which “the agency is authorized to exercise a degree of discretion” such that OPM has authority to adopt its writing requirement? Loper, 603 U.S. at 394.
- Is there a statutory provision (e.g., 5 U.S.C. §§ 1104, 5548) that provides such authority?
The Court also invited amicus participation to assist in resolving those questions.
The first question appears to go to what the “best reading” of the relevant statute is. After all, as Loper Bright teaches, “statutes, no matter how impenetrable, do—in fact, must—have a single, best meaning” that “is fixed at the time of enactment.” And “[i]n the business of statutory interpretation, if it is not the best, it is not permissible.”
The second and third questions concern the broader issue of whether OPM’s overtime regulation imposing a writing requirement is beyond its power. Put another way, did Congress delegate to OPM the power to decide what requirements must be met for overtime to be “officially ordered or approved”? For context, the Federal Circuit’s order quotes from the following passage in Loper Bright:
In a case involving an agency . . . the statute’s meaning may well be that the agency is authorized to exercise a degree of discretion. Congress has often enacted such statutes. For example, some statutes “expressly delegate[ ]” to an agency the authority to give meaning to a particular statutory term. Others empower an agency to prescribe rules to “fill up the details” of a statutory scheme or to regulate subject to the limits imposed by a term or phrase that “leaves agencies with flexibility,” such as “appropriate” or “reasonable.”
When the best reading of a statute is that it delegates discretionary authority to an agency, the role of the reviewing court . . . [is] to independently interpret the statute and effectuate the will of Congress subject to constitutional limits. The court fulfills that role by recognizing constitutional delegations, “fix[ing] the boundaries of [the] delegated authority,” and ensuring the agency has engaged in “‘reasoned decisionmaking’” within those boundaries[.]
It will be interesting to see how the full Federal Circuit thinks through these questions and what broader implications the ultimate decision will have given OPM’s government-wide responsibilities.