Professor John Meisel’s recent post at the Yale Journal on Regulation’s Notice & Comment blog offers a fascinating framework for understanding how the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo creates an incentive for Congress to avoid “statutory vagueness” and “draft more precise statutes.”  Meisel characterizes the Court’s decision as establishing a “penalty default rule” and makes several predictions for how that “rule” might operate.  Those predictions are largely persuasive, but whether they bear out has yet to be seen, and there are some grounds to push back against what I sense to be Meisel’s unspoken pessimism.

A penalty-default rule is an interpretive concept drawn from the law of contracts.  It effectively directs a reviewing court to penalize at least one of the parties to a contract when filling any “gaps” in their agreement.  The idea behind the rule is that any threat of disfavored treatment will motivate the parties to do a better job setting forth the terms of their agreement on the front end.  Meisel explains how this “rule” applies in the Loper Bright administrative-law context:

Loper Bright and Political Accountability

I appreciate Meisel’s characterization of Loper Bright’s implications for Congress, as well as the Court’s interest in restoring a more traditional conception of the separation of powers.  I recently wrote a piece critiquing a report published by the Center for Progressive Reform that attempted to cast Loper Bright as the product of an “anti-democratic” “juristocratic regime” that seeks to “reinforce existing power disparities.”  In responding to that incredulous claim, I hinted at the very dynamics underlying Meisel’s framing:

Loper Bright is coherent and, while its implementation has not been uniform, that is hardly cause for concern.  The lower courts are reaching agreement about how de novo review under Loper Bright should operate after the forty-year-old Chevron experiment.  That is going to take some time to work its way through the system.  Plus, if anything, Loper Bright is best understood as a democratic and constitutional corrective.  Congress is the most politically accountable branch.  Ensuring that agencies follow Congress’s statutory directives—and not the President’s—allows our representatives to assume responsibility for legislating, rather than shifting that role to unelected bureaucrats.

To be sure, Loper Bright’s penalty-default rule will entail costs, especially for the legislative branch, if it is to respond honestly to the Court’s incentive.  Congress will need to be more specific when drafting statutes.  This doesn’t necessarily mean that Congress will write more detailed laws, in the sense of regulating minutiae, especially in highly technical or scientific contexts.  Congress can just as easily be clearer about its delegations of discretionary regulatory authority to administrative agencies.  Either approach, however, entails limiting statutory ambiguity.

Agency Practice in the Wake of Loper Bright

So, what should happen if Meisel’s penalty-default theory holds true?  He makes four predictions.  First, he argues that, on the agency side, we should see regulators “invest more heavily in statutory analysis and litigation defense.”  To a certain extent, this has already happened.  My piece in RealClear Policy last month explored how Loper Bright has transformed the executive branch’s approach to rulemaking and, specifically, regulatory reform.  The notion that all regulations must reflect the “best reading of the underlying statutory authority or prohibition,” for example, is now formalized in Executive Order 14219.

At the same time, agencies don’t seem to have embraced greater “procedural formality,” as Meisel also predicts.  Indeed, quite the opposite.  The White House Office of Information and Regulatory Affairs (“OIRA”), for example, issued a memo last year reinforcing an earlier presidential memo directing agencies to invoke the APA’s “good cause” exception to bypass notice-and-comment processes.  In the long term, though, it is still a safe assumption that agencies will provide more detailed bases for their regulatory actions, which are likely, in any event, to skew conservative in terms of their underlying presumptions about the scope of agency authority.  I discussed that expectation earlier this year when I reviewed a draft report (now finalized) prepared for the Administrative Conference of the United States:

Professor Deacon notes several [agency] 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 “leading 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 in reference to Loper Bright’s occasional nods towards agencies’ expertise.”

Loper Bright’s Potential Impact on Courts

Meisel’s third prediction is that “litigation itself may become a substitute regulatory instrument.”  It is not clear to me why Loper Bright would cause “more judicial involvement in regulatory policymaking,” as opposed to a different kind of engagement.  Although Loper Bright represents a paradigm shift in the standard of judicial review for APA cases, it has hardly opened the floodgates to litigation.  Nor has it proven to be an invitation for judges to insert themselves—as if they were able to do so sua sponte—into discretionary policymaking.  This is certainly the case where there is clear delegation of broad regulatory authority.  In any event, with some notable exceptions, even the Administration’s efforts to leverage Loper Bright as part of its deregulatory agenda has not resulted in a massive uptick in cases challenging regulations, as opposed to subregulatory policies or practices or discrete enforcement actions.  Whether Meisel’s prediction materializes at some later date is possible, of course, but even then, if disagreements about the meaning of the law arise with some new regulation, it is the province of the judiciary to resolve those disputes, not the agency.

The Big Question: How Does Congress Respond?

Finally, Meisel suggests that Loper Bright’s penalty-default rule may lead to “congressional adaptation” that is “selective rather than comprehensive.”  In other words, while Congress could “provide more detailed statutory instructions” in certain “highly salient” areas, it may otherwise be hindered by “existing political constraints” and fail to live up to the Court’s expectations.  The determining factor, Meisel argues further, is whether congressional decision-makers decide to build “legislative capacity” and push to reform internal “doctrines” and procedures.

Overall, this prediction seems right.  As Susan Dudley, the former OIRA administrator has argued, “Congress itself needs more resources” to respond effectively in a post-Chevron landscape.  And it is not just a question of financial resources.  Congress should retain subject-matter experts to make committees “sources of knowledge and deliberation,” especially in highly technical areas.  There also needs to be an improvement in legal expertise; legislative counsel should be able to anticipate how judges, under Loper Bright, will interpret the meaning of any given statute.  Avoiding ambiguity or being more comprehensive is only the beginning—drafting quality should be the overarching priority. 

Turning to other procedural or cultural adaptations that may be necessary to reach comprehensive congressional engagement, Senator Eric Schmitt’s Post-Chevron Working Group Report lays out a rather detailed plan for how Congress can pursue short-, medium- and long-term structural reforms that will, ultimately, lead to something more substantial than the piecemeal “adaption” that Meisel fears.  Even among progressives, some have proposed that the end of Chevron deference presents a “political opportunity” that will lead to widespread agreement about the advantages of Congress taking its role under Article I seriously once more.

Conclusion

Professor Meisel’s penalty-default framing captures something intuitively correct about Loper Bright’s constitutional logic.  Yet Meisel seems to imply quite subtly that the burden the Court has placed on Congress is something to be regretted or at least managed.  I am more optimistic.  In my mind, the penalty of statutory ambiguity is really the ordinary work of legislating, and something that Congress should always have sought to avoid.  If Loper Bright nudges Congress to draft more carefully, delegate clearly, and invest in its own capacity to do both, that is not a bug in the decision.  It is the driving force of its message on the separation of powers.  Loper Bright is a step towards restoring a healthier constitutional equilibrium.  That is worth defending on its own terms.

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

Last month, the Center for Progressive Reform (“CPR”) published a report analyzing the reception of Loper Bright in the lower courts.  CPR’s headline empirical finding is that agency “win” rates have dropped from roughly 70% under Chevron to just 57% in the fourteen months following the Loper Bright decision.  Given this shift, you might expect the authors—James Goodwin and Federico Holm—to read the trend as substantiating what Loper Bright was designed to do: put judges back in the business of saying what the law is, while also correcting the drift of agencies that were long operating outside the bounds of their express statutory authority. 

Yet, in an accompanying blog post, Goodwin opts instead for rhetorical bravado, advancing the bold claim that, while Loper Bright might be popularly treated as an “anti-regulatory” decision, it is in fact “anti-democratic” and “will reinforce existing power disparities in our society.”  This is unfortunate framing that is ultimately unsupported by the data underlying CPR’s research.  Recent legal outcomes are hardly evidence of a “juristocratic regime” run amok; they are proof that federal courts are once more fulfilling their constitutional role.  On closer inspection, the doctrinal “complexities” that Goodwin and Holm highlight as grounds for concluding there is “no Loper Bright ‘framework’ to speak of” are either overstated or fully reconcilable with the logic of de novo review.

Statutory Stare Decisis: Unsettled, but Not Incoherent

CPR’s report is based on the authors’ review of ninety-one federal court decisions that were issued in the wake of Loper Bright.  Goodwin and Holm confidently claim courts have been all over the place with their application of Loper Bright, pointing to certain “complexities” in the Loper Bright paradigm that supposedly undercut a comprehensible de novo standard of review.  Consider, first, what Goodwin and Holm term Loper Bright’s statutory stare decisis “offramp.”  They characterize stare decisis as a sort of exception to de novo review, which ought to apply whenever the “meaning” of a “statutory term . . . has been determined in a previous case using the Chevron deference framework.”  But this is a gross simplification of how stare decisis works.  And it fails to provide actual context as to how lower courts are grappling with the principle. 

When Chief Justice Roberts suggested Loper Bright would “not call into question” the “holdings of those cases that specific agency actions are unlawful,” he admittedly failed to define his terms.  Courts have been left asking: Does stare decisis attach to specific agency action—such as a discrete rulemaking—upheld under Chevron?  Or does it attach to the underlying legal interpretation used to justify that action?  And what happens if a precedent leaves space for multiple permissible readings, as the Trump Administration argues with Babbitt v. Sweet Home in a recent final rulemaking discussed by my colleague, Michael Pepson, here.  To add fuel to the proverbial fire, it also remains unclear whether the Chief Justice intended for the phrase “prior cases” to include circuit precedent, as opposed to just the Supreme Court’s past decisions.  

Different courts have sought to resolve these questions.  And we have covered as much here, here, here, and here—to provide just a few examples.  But none of this apparent confusion is insurmountable, nor does it suggest Loper Bright is “anti-democratic.”  It is simply part of the normal reception of any landmark case.  Eventually, the Supreme Court will likely step in and provide further clarity.  In the meantime, it is good for these issues to percolate through the courts of appeals.

Ambiguity as Loper Bright “Step One”?

Goodwin and Holm identify another “complexity” that they argue is a second “preliminary issue” courts must address “before reaching de novo review”: whether a statutory “term at issue is in fact ambiguous.”  This “determination,” they claim, “mirrors Step 1 of the now-defunct Chevron deference doctrine.” 

It is unclear where this supposed requirement can be found in Loper Bright itself.  The Court was clear that the end of Chevron deference meant the end of implicit delegations based on textual ambiguity.  Regardless of whether a particular term might be prone to multiple interpretations, it is the court’s role to provide independent judgment as to the best reading of the law.  “In the business of statutory interpretation, if it is not the best, it is not permissible.”  That is the heart of de novo review.  As the Chief Justice explained:

The APA . . . codifies for agency cases the unremarkable, yet elemental proposition reflected by judicial practice dating back to Marbury: that courts decide legal questions by applying their own judgment.  It specifies that courts, not agencies, will decide “all relevant questions of law” arising on review of agency action . . . even those involving ambiguous laws[.]

Although there have been a few instances when supposed textual ambiguity has led to what Judge Rao calls “Loper Bright avoidance,” this does not appear to be a widespread phenomenon.  The more pressing issue is residual uncertainty over the level of “due respect” owed to an agency when its interpretation of the law “rests on factual premises” within its scientific or technical “expertise.”  This, of course, raises separate questions about the compatibility of Loper Bright with existing deference doctrines like Baltimore Gas.

Discretion Within Statutory Bounds: Not a Chevron Revival

Ultimately, the other alleged doctrinal inconsistencies discussed by Goodwin and Holm are reconcilable with the logic of de novo review and a proper textualist approach to reading law.  For example, the CPR authors argue Loper Bright covertly resurrects Chevron Step Two by conceding that sometimes a “statute’s meaning may well be that the agency is authorized to exercise a degree of discretion.”  In these situations, Loper Bright and de novo review yields to hard-look review under the APA’s more deferential “arbitrary and capricious” standard.  Such a delegation might occur when Congress gives an agency the express power to define terms or regulate according to capacious terms like “appropriate” or “reasonable.”

Determined judges will always be able to manipulatively identify and define the scope of these “Loper Bright delegations,” perhaps even as a way of reintroducing Chevron-like deference.  We have discussed as much in the past, here and here.  And it is unclear what sort of deference—if any—ought to apply to mixed-questions of law and fact.  Yet the fact remains that courts retain responsibility for ensuring that any delegation is properly defined and bounded, and that discretionary agency action remains within the realm of the permissible.  Policing a delegation, in this way, entails more robust judicial engagement with the law than was required under Chevron.  And there is no doctrinal inconsistency!  As Justice Kavanaugh has long explained, “a judge can engage in appropriately rigorous scrutiny of an agency’s statutory interpretation” and “simultaneously be very deferential to an agency’s policy choices within the discretion granted to it by the statute.”

Skidmore? No more!

The final issue highlighted by Goodwin and Holm is Loper Bright’s passing reference to Skidmore deference and the notion that agency interpretations can “constitute a body of experience and informed judgment to which courts and litigants properly resort for guidance.”  In their view, any reliance on Skidmore “has the practical effect of reducing the conceptual distance between Chevron and Loper Bright in many cases.”

Goodwin and Holm are correct that, in the immediate wake of Loper Bright, there were some courts willing to “treat Loper Bright almost as if it ha[d] reinstated Skidmore respect analysis as the prevailing mechanism for resolving statutory ambiguity.”  The leading case—and perhaps the most extreme example—was the Ninth Circuit’s panel decision in Lopez v. Bondi.  (Of note, Judge Bumatay authored a forceful takedown of the Circuit’s denial of rehearing en banc, as we highlighted at the time.)

Yet, as Loper Bright implementation continues, Skidmore is not likely to undergo any serious revival.  Most courts have not followed the Ninth Circuit’s lead.  As I explained here and here, the Supreme Court’s use of Loper Bright  throughout the October 2024 Term suggests that judicial “respect” for an agency’s legal interpretation only makes sense when that interpretation is probative of the original public meaning of the statutory text.  For example, in cases like Kennedy v. Braidwood Management and Bondi v. VanDerStok, the Court framed its consideration of agency interpretations through concrete application of well-established canons of interpretation like contemporanea expositio and interpres consuetudo.  These venerable canons attend to longstanding and consistent agency practice—factors later associated with Skidmore deference. 

Unfortunately, Goodwin and Holm fail to appreciate how this misleadingly selective attention to only some of the Skidmore factors was neither unintentional nor haphazard, but instead part of a broader push towards a more faithful textualist methodology focused on original public meaning.  That the CPR report notes the low marginal utility of deploying robust Skidmore arguments in the post-Chevron paradigm arguably reflects the Court’s methodological push.

Conclusion: Goodwin and Holm Undercut their Own Thesis

CPR’s “numbers” hardly suggest a massive shift towards courts blessing deregulatory actions or reversing agency interpretations.  As explained at the outset, Goodwin and Holm estimate that agency “win” rates under Loper Bright approximate what they were before the advent of Chevron deference.  To be sure, moving from a 70% win-rate under Chevron to a 57% win-rate under de novo review may be statistically significant.  But it is unclear why that shift doesn’t underscore the problem with Chevron in the first place, which functioned as an incentive for agencies to go beyond the bounds of their express statutory authority.  That agencies are now faring “very poorly” (or more accurately, less overwhelmingly well but still more than half the time) when the underlying statutory authority is “unambiguous” proves the point.

Goodwin and Holm are plainly wrong that Loper Bright is “anti-democratic” and “reinforce[s] existing power disparities.”  Loper Bright is coherent and, while its implementation has not been uniform, that is hardly cause for concern.  The lower courts are reaching agreement about how de novo review under Loper Bright should operate after the forty-year-old Chevron experiment.  That is going to take some time to work its way through the system.  Plus, if anything, Loper Bright is best understood as a democratic and constitutional corrective.  Congress is the most politically accountable branch.  Ensuring that agencies follow Congress’s statutory directives—and not the President’s—forces our representatives to assume responsibility for legislating, rather than shifting that role to unelected bureaucrats.

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

In Loper Bright v. Raimondo, the Supreme Court overturned Chevron deference, ending forty years of courts deferring to agency statutory interpretations. Now, the duty of saying what the law is has returned to where it belongs: the courts.

Two years later, federal agencies are quickly rewriting the regulatory landscape, reconsidering many old regulatory interpretations that heavily relied on deference. At the same time, a series of executive orders from President Trump have demanded a thorough review across the government to combat overreach. We are now tracking the result of all these moves in one place.

Tracking Rulemaking

AFPF is proud to announce the launch of the Recasting Regulations Tracker. This tool follows this wave of reform as it happens. Updating daily from the Federal Register, the resource currently tracks over 1,700 regulatory actions across 49 agencies. Scoring each action for both how substantive of a regulatory action it is and how directly the reform agenda drove the action, this platform provides the most comprehensive understanding into Loper’s recasting of the regulatory landscape. With over 120 regulatory actions citing to Loper Bright, this tracker demonstrates the broad impact this landmark decision is having.

Dynamic Content

Every element on the page—from roll up totals to all of the charts—is clickable, providing a dynamic user experience and showing everyone exactly what they need to see.  Every regulation is linked to the Federal Register, providing an easy way to access original source material.

Click here to explore the tracker and subscribe to Recasting Regulations for all of our Loper Bright updates as they happen.

In June 2024, a landmark Supreme Court decision — Loper Bright Enterprises v. Raimondo — changed how federal laws are interpreted. While government agencies possess the constitutional authority to create regulations that explain how to implement a statute on a daily basis, they do not have the authority to interpret unclear laws.

In the Loper Bright case, a federal agency sought to force fishermen to pay out of their own pockets for at-sea monitors — biological technicians who are onboard to prevent overfishing — when the law was ambiguous about who should pay the fee. By overturning decades of precedent, the Supreme Court limited agencies’ ability to interpret unclear statutes and reaffirmed the roles of Congress and the courts in making and interpreting laws.

Read Stand Together’s full profile on their website here.

Santa Fe Institute and Foundation for Economic Education trustee John Chisholm in the Wall Street Journal revisiting Justice Kagan’s worry that ending Chevron deference would “cause a massive shock to the legal system.”

What about Justice Kagan’s warning? Two years on, no “massive shock” has materialized. Agencies still prevail in most challenges. Empirical studies put their win rate at roughly 75% when courts applied Chevron and near 60% on established rules since Loper Bright. The change has been evolutionary, not revolutionary, as agencies revise and defend their rules more carefully, rather than watch them swept away.

Overturning Chevron is often cast as a fight over control of the administrative state. It is better understood as a question about the quality of decision-making—whether a federal law is best interpreted by one, often partisan agency or by a distributed network of courts engaged in continuous, real-world discovery.

Read the full piece in the Wall Street Journal here.

Law & Liberty published an essay by AFPF’s James Valvo & Ryan Mulvey on how a recent dustup over the constitutionality of the Presidential Records Act provides an opportunity to strengthen antifragile government. The essay opens:

The Presidential Records Act (PRA) has lately been a source of controversy. The Department of Justice’s Office of Legal Counsel (OLC) published an opinion at the beginning of April that concluded the PRA is unconstitutional because it “exceeds Congress’s enumerated and implied powers” and “aggrandizes the Legislative Branch at the expense of the constitutional independence and autonomy of the Executive.”

OLC’s opinion has raised eyebrows. It may even be wrong on the law. Nevertheless, it is good to see the political branches jockeying for position over the constitutionality of one another’s actions. A healthy, antifragile government requires occasional interbranch battles over the structure of our government. A separation of powers that is never tested risks atrophy. But for several decades, the executive branch has been on a winning streak; the OLC opinion presents a fresh opportunity for Congress to reassert itself.

Read the full essay on Law & Liberty’s website.