Loper Bright Updates

During a Senate Budget Committee nomination hearing yesterday, Senator Chuck Grassley (R-Iowa) asked Russell Vought, President Trump’s nominee to be the Director of the Office of Management and Budget, to give his view on the Loper Bright decision:

“I’d like your view on… the recent Supreme Court decision overturning the Chevron Doctrine… how that can help you to stop our government from being overregulated, and stop bureaucrats from overreaching and using statues that may be liberally interpreted.”

“So, you’ll be watching that regulatory process to make sure that Loper is followed?”

Chevron’s Swan Song: Loper Bright and the New Era of Judicial Oversight of Agency Actions
By Adam, Feldman, Legalytics, Jan. 17. 2025

From 1984 to 2024, judges examining agency interpretations of statutory language followed the following guidelines: “When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: ‘Our Constitution vests such responsibilities in the political branches.’ TVA v. Hill, 437 U. S. 153, 195 (1978).” These are Justice Stevens’ words from the 1984 Supreme Court decision in Chevron v. NRDC. In 2024’s Loper Bright v. Raimondo, Chief Justice Roberts wrote for the Court’s majority: “Chevron was a judicial invention that required judges to disregard their statutory duties. And the only way to ‘ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion,’ Vasquez v. Hillery, 474 U. S. 254, 265 (1986), is for us to leave Chevron behind.”

This overhaul drastically changed the legal landscape surrounding deference to agency interpretations of statutes and has left many question marks for attorneys and judges in this area on how to navigate in this new terrain. This article examines over 300 opinions from all types of courts, mostly federal with the exception of a few state court cases, that include citations to Loper Bright to try and get a sense of how courts will treat challenges to agency interpretations based on this recent shift in precedent.

Read more.

In the Yale Journal on Regulation Notice and Comment blog, Adam White calls for papers for presentation in summer 2025 at Antonin Scalia Law School:

Judges, lawyers, legislators and academics will grapple with these questions for many years to come—just as they did for decades after Chevron itself. Legal scholarship, at its best, exists to inform and improve such deliberations, the C. Boyden Gray Center for the Study of the Administrative State is inviting papers on “Textualism and Administration After Loper Bright,” to be presented and discussed at a research roundtable at the Antonin Scalia Law School in Summer 2025.

…

To support scholarly research and discussion on this important subject, we offer authors a substantial honorarium for their draft, and after the roundtable we will post the authors’ subsequent drafts to the Gray Center’s Working Papers Series.

If you would like to submit a paper for this roundtable, then please email a short description of your project to the Gray Center’s executive director, Adam White (awhite36@gmu.edu), by February 10, 2025. We will schedule the roundtable in consultation with the authors.

Senators Rand Paul (R-KY) and Eric Schmitt (R-MO) reintroduced the Separation of Powers Restoration Act (SOPRA).

Although the Supreme Court has overturned Chevron deference, SOPRA will codify the principle that courts must decide cases based on their legal merits without giving deference to prior agency decisions or interpretations, ensuring that all forms of deference doctrines are curtailed. 

Rep. Mark Green introduced the Sunset Chevron Act:

This bill requires the Government Accountability Office (GAO) to compile a list of executive agency actions that have been upheld by Chevron deference. These actions begin sunsetting every 30 days on a rolling basis unless they are upheld by Congressional action. Agency rules will sunset in reverse chronological order so that the newest rules sunset first. This legislation also makes an exception to the 60 legislative day restriction on filing a Congressional Review Act (CRA) for rules upheld by the Chevron doctrine, giving lawmakers more time to challenge executive agency rules and regulations, even those that are decades old.

Read the text of the bill here. 

The U.S. Court of Appeals for the Sixth Circuit invalidated the Federal Communications Commission’s (FCC) 2024 net neutrality regulations, which had reclassified broadband internet as a Title II telecommunications service to enforce rules preventing internet service providers (ISPs) from blocking or throttling content. The court determined that the FCC lacked the statutory authority to impose such regulations, emphasizing that broadband services should be classified as Title I information services, thereby limiting the FCC’s regulatory reach.

A coalition of organizations urged Congress to curtail the overreach of the administrative state in light of the Chevron doctrine, which has long allowed federal agencies to interpret ambiguous laws with minimal judicial oversight. In a letter to Congress, the coalition advocates for legislative measures that restore accountability and empower lawmakers, rather than unelected bureaucrats, to craft and clarify laws. By addressing the unchecked growth of agency power, the coalition aims to strengthen democratic processes and uphold constitutional principles of separation of powers.

CLICK HERE TO READ THE LETTER

In Loper Bright Enterprises v. Raimondo, the Supreme Court squarely held that “Chevron is overruled” and “[c]ourts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.”  After Loper Bright, federal courts may no longer “defer to an agency interpretation of the law simply because a statute is ambiguous.”  Nonetheless, in Tennessee v. Becerra, a Sixth Circuit panel recently granted a 2021 HHS regulation Chevron deference in disguise.  The panel justified this deference based on Supreme Court and Sixth Circuit precedents that upheld different, now-repealed regulations, but which had determined the same underlying statute purportedly authorizing such regulations to be “ambiguous.”  The Tennessee court misapplied Loper Bright and got the law wrong.

Under Loper Bright, courts must identify a statute’s single “best reading” with one important, but limited, caveat.  To guard against disruptive consequences that might flow from upending specific preexisting regulations that have been upheld against legal challenges during the forty-year Chevron regime, the Loper Bright court clarified “[t]he holdings of those cases that specific agency actions are lawful . . . are still subject to statutory stare decisis[.]”  Loper Bright thus tethered the scope of statutory stare decisis to the many, specific regulations upheld under Chevron—not the underlying statutes that courts previously deemed ambiguous at Chevron Step One.

The Tennessee panel majority concluded a 2021 HHS regulation was entitled to statutory stare decisis—i.e., Chevron deference on steroids—because previous judicial decisions held the same underlying statute ambiguous.  The court reasoned that Loper Bright could not dictate abandonment those older cases—specifically, Rust v. Sullivan or Ohio v. Becerra—because Loper Bright “does not ‘call into question prior cases that relied on Chevron.’”  Yet, as Judge Kethledge explained in dissent, such cases were not only “Chevron case[s] down to [their] bones,” but the specific agency actions at issue in those precedents had “since been rescinded.”  There was therefore “no occasion to defer” to these earlier holdings, no basis for statutory decisis, and no reason to avoid engaging in independent construction of the law at issue.

The Tennessee court’s misapplication of Loper Bright inadvertently rolls out the red carpet for agency abuse, overreach, and regulatory ping pong in a host of contexts.  The panel majority mistakenly overread a single, passing sentence in Loper Bright to effectively insulate a wide swath of statutory provisions from Loper Bright’s key teaching: statutes “have a single, best meaning,” and “courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.”  Tennessee creates a vessel through which Chevron’s ghost may continue to haunt private parties harmed by agency regulations flowing from statutory provisions deemed ambiguous under its now-rejected deference regime.  This must be nipped in the bud.

Tennessee has asked the full Sixth Circuit to rehear the case.  The court should do so to bring its precedent in line with what Loper Bright requires.