As we’ve discussed, Loper Bright has been changing the legal landscape as courts revisit and revise or uphold standards of review. Recently, the Eighth Circuit reviewed “the authority of the President and Secretary of Education, under existing law, to forgive hundreds of millions of dollars of loans made to borrowers to finance the cost of obtaining their post-secondary education.” Missouri v. Trump, No. 24-2332, 2025 WL 518130, at *1 (8th Cir. Feb. 18, 2025). At issue was a Biden-era rule (“SAVE Rule”) promulgated by the Department of Education to modify a pre-existing income contingent repayment (ICR) plan for federal student loans that would alter payment thresholds, stop interest accrual, and forgive loan balances after as little as ten years of repayment. Seven states challenged the rule as exceeding the Secretary of Education’s authority.
Congress Creates Loan Program
In 1993, Congress authorized the federal government to directly issue loans to college students, which allowed borrowers to repay their loans through four generally applicable options: (1) a standard repayment plan with fixed payments over a period not exceeding ten years; (2) a graduated repayment plan with increasing payments over a period not exceeding ten years; (3) an extended repayment plan with fixed or graduated payments over a period not exceeding twenty-five years; or (4) an income contingent repayment plan with varying payments based on income over a period not exceeding twenty-five years. 20 U.S.C. §§ 1078(b)(9)(A), 1087e(d)(1)(A)–(D).
Congress later enacted the College Cost Reduction & Access Act to expand repayment options for low-income borrowers by creating an income-based repayment (IBR) plan to limit monthly payments for borrowers experiencing a “partial financial hardship.” See, Pub. L. No. 110-84, § 203, 121 Stat. 784, 792–95 (2007) (codified as amended at 20 U.S.C. § 1098e). The plans have two central features: a ceiling on loan payments and loan forgiveness after twenty or twenty-five years of payments. These features are expressly set forth in the statute. 20 U.S.C. § 1098e.
There were thus two potential programs applicable to repayment based on income: the ICR and the IBR. The ICR statutory text does not provide a specific formula for calculating loan payments and does not explicitly state the Secretary can forgive loans. Instead, the balance owed “equal[s] the unpaid principal amount of the loan, any accrued interest, and any fees, such as late charges, assessed on such loan.” Congress empowered the Secretary to “establish procedures for determining the borrower’s repayment obligation on that loan for such year, and such other procedures as are necessary” to implement the ICR.
Accordingly, since 1994, the Department of Education has established various ICR plans that provided for loan forgiveness of any remaining debt at the end of the established payment period of twenty or twenty-five years, depending on the plan and the borrower’s loans.
The Biden Administration SAVE Rule
The SAVE Rule, by contrast, starts cancelling outstanding balances after 120 months of payments for certain borrowers and forgives remaining balances after twenty years of payments for borrowers with only undergraduate loans or twenty-five years of payments for those with graduate loans. The difference between the SAVE Rule and previous approaches is that under SAVE some borrowers would repay less than the original amount borrowed and only “borrowers in the top two quintiles of lifetime income could expect to pay more than they initially borrowed.”
In evaluating whether the SAVE Rule was authorized by the statute the court relied on Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024) for the scope of its task, “determine[ing] the statute’s ‘best meaning’ by “deploying its full interpretative toolkit.” The court thus starts with “the statute’s plain language,” looking to “the meaning that proper grammar and usage would assign” the text, giving “effect, if possible, to every clause and word of a statute” and “look[ing] to the structure of the statute and the language surrounding the term to ascertain its meaning.” If the text is clear, “the judicial inquiry must end.”
Accordingly, the court determined that at “the time ICR was first codified, the statute had four generally applicable options for borrowers to repay ‘principal and interest’ on their loans:
- a standard repayment plan with a fixed payment made over a set number of years, not to exceed ten years;
- an extended repayment plan with a fixed annual repayment amount paid over an extended period of time;
- a graduated repayment plan, “with annual repayment amounts established at 2 or more graduated levels and paid over a fixed or extended period of time, except that the borrower’s scheduled payments shall not be less than 50 percent, nor more than 150 percent, of what the amortized payment on the amount owed would be if the loan were repaid under the standard repayment plan”; and
- an income contingent repayment plan, with varying payments based on income paid over an extended time period, not to exceed twenty-five years.”
Court Distinguishes SAVE Plan from IBR
Unlike the IBR, Congress did not empower the Secretary to cancel outstanding balances after a certain number of payments. Nevertheless, the federal officials claimed the absence of the phrase “full repayment” and the presence of the words “income contingent” signify Congress expected loan repayment to be fully contingent on whether a borrower earned enough income and borrowed a small enough amount of money. But silence does not equal authority. And, although “courts give ‘respect’ to ‘an Executive Branch interpretation [that] was issued roughly contemporaneously with enactment of the statute and remained consistent over time.’” . . . “’respect’” simply means ‘[t]he views of the Executive Branch could inform the judgment of the Judiciary, but d[o] not supersede it.’” . . . and “[T]he basic nature and meaning of a statute does not change when an agency happens to be involved” or “has happened to offer its interpretation.” Citing Loper Bright, 144 S. Ct. at 2258, 2271.
The court thus concluded that “As with the previous attempt at loan forgiveness, the major questions doctrine informs our analysis. We assume Congress would have provided clear signs if it authorized such significant power to the Secretary. . . . It did not. By creating the ICR plan, Congress simply created a different method to calculate payments to repay student loans.”
Accordingly, the court held that the states were likely to succeed in their challenge to the SAVE Rule’s forgiveness provision, affirmed the district court’s entry of a preliminary injunction, and remanded with instructions to modify the preliminary injunction to enjoin the entire SAVE Rule.
On February 19, President Trump issued an executive order titled Ensuring Lawful Governance and Implementing the President’s “Department of Government Efficiency” Deregulatory Initiative. In the EO, Trump directed agencies to review all regulations to identify those that may need to be revised or repealed to comply with the Constitution, existing law, court precedent, and the Administration’s priorities.
Three important Supreme Court doctrines are among the reasons the President directed agencies to identify existing rules for deregulation. The EO directs agencies to search for “regulations that are based on unlawful delegations of legislative power;” “regulations that are based on anything other than the best reading of the underlying statutory authority or prohibition;” and “regulations that implicate matters of social, political, or economic significance that are not authorized by clear statutory authority[.]” These criteria mirror the nondelegation doctrine, Loper Bright’s end of deference to agency interpretations of law, and the Major Questions Doctrine, respectively.
The nondelegation doctrine seeks to ensure that Congress does not hand away its legislative power to private parties or the Executive Branch. The Supreme Court is currently considering a case, FCC v. Consumers’ Research, examining whether the Universal Service Fund violates that doctrine by allowing the agency and a private body to essentially determine the tax rates to fill the fund’s coffers. There are undoubtedly many statutes throughout the federal government that violate this doctrine, and it’s long past time that agencies go looking for them and call them out.
Loper Bright famously overturned the Chevron Doctrine, which had previously directed courts to defer to agency interpretations of ambiguous laws, even if that interpretation was not the best reading of the law. The administrative state was built on the back of these questionable legal interpretations, and Loper Bright opens the door for the public, agencies, and courts to restore the scope of agency authority to its proper statutory limits.
The Major Questions Doctrine recognizes that when Congress legislates on matters of social, political, or economic significance, it is likely to do so clearly. And not, as Justice Scalia wrote, hide the proverbial elephant in a mousehole. This doctrine has been used for decades to rein in overeager regulators as they hunt for passing phrases in old laws to accomplish their present-day regulatory objectives on matters such as greenhouse gas regulations, student loan “forgiveness,” and nationwide vaccine mandates. If Congress wants agencies to advance these policy preferences, it must tell them directly and clearly.
The EO directs that after agencies compile lists of regulations that transgress these, and other, principles from the EO, agencies should send the list to OMB’s Office of Information and Regulatory Affairs and exercise a measure of prosecutorial discretion while the White House and agencies process the deregulatory agenda according to applicable administrative statutes.
These steps mirror a plan I outlined in December titled DOGE Must be Methodical to be Effective. The only additional recommendation I had was to involve Congress by sending the agency-identified list to the respective committees of jurisdiction and give them an opportunity to codify the rules in statute, if Congress believes that is proper. I still think that would be a good idea, and the opportunity for congressional collaboration is still available. The House has set up a DOGE Subcommittee in the Committee on Oversight and there is a burgeoning DOGE Caucus. Engaging these Members of Congress will increase the political legitimacy and durability of these deregulatory efforts.
President Trump’s EO on Ensuring Lawful Governance is an important first step to ridding the regulatory state of unconstitutional, overbroad, and harmful regulations. The next steps will be crucial as well.
Mr. Valvo is chief policy counsel at Americans for Prosperity Foundation and one of the counsels representing the fishermen in Loper Bright.
In Loper Bright Enterprises v. Raimondo the Supreme Court overruled Chevron v. NRDC—which had required federal courts to defer to the government’s “reasonable” interpretation of ambiguous language in statutes—holding that “[c]ourts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the [Administrative Procedure Act] requires” and that “courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.”
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Clement and Murphy PLLC represented the fishermen before the Supreme Court in Loper Bright.
In Moctezuma-Reyes v. Garland the Sixth Circuit was tasked with interpreting the meaning of the statutory phrase “exceptional and extremely unusual hardship” in assessing Mr. Moctezuma-Reyes’s petition for review of an immigration judge’s denial of his application for cancellation of his removal from the United States, which the Board of Immigration affirmed.
The Court expressed sympathy for Mr. Moctezuma-Reyes’s circumstances, describing him as “a devout Catholic, a loving father as well as husband, and a godfather to six children,” noting that the immigration judge described him as “‘a good person, a good father, a good husband.’” The Court nonetheless found that his removal would not cause “exceptional and extremely unusual hardship” and denied his petition because the law, as written, required that result. After all, courts are not supposed to make policy choices—that is Congress’s job.
But whatever one thinks about that outcome as a policy matter, what makes this decision notable is the Sixth Circuit’s thoughtful implementation of Loper Bright’s core teaching: “[c]ourts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority” and may no longer “defer to an agency interpretation of the law simply because a statute is ambiguous.”
As the panel opinion, authored by Judge Thapar, noted: “[E]ven with Loper Bright now on the books, one might claim that we should nevertheless defer to the BIA on the legal meaning of ‘exceptional and extremely unusual hardship.’ Why? Because the Supreme Court has instructed us that occasionally the best reading of a particular statute will reveal that Congress expressly and explicitly delegated discretion to the agency—and that we must defer to the agency’s exercise of its discretion.” But as the panel opinion explained, “express language conferring discretion on the agency is critical: If broad language alone triggered deference, we’d unwittingly return to construing less than precise words as implicit delegations to the agency that warrant deference. That can’t be right. The case that declared ‘Chevron is overruled’ didn’t quietly reinstitute it.” And as the panel opinion observed, while “there are rare circumstances where a court may have to defer to an agency,” courts “must be sure. The actual delegation of authority to the agency must be clear: imprecise wording alone won’t cut it. Chevron is no more.” This means that before deferring to an agency’s judgment on a statute’s meaning, a court “must find that the statute expressly confers discretion on the agency.” In other words, under Loper Bright, onlystatutes with “express language conferring discretion on the agency to interpret a broad standard” require courts to undertake a three-step inquiry to determine whether a form of deference is warranted.
Applying those principles, the panel opinion concluded that, although broadly worded, the statute’s “‘exceptional and extremely unusual hardship’ standard does not qualify for this sort of deference,” because it was not coupled with “language vesting the BIA with discretion to determine the meaning of” that phrase. As the panel observed, “the actual statutes that Loper Bright cited as examples of delegations that may call for deference don’t only have broad language. They pair that language with words that expressly empower the agency to exercise judgment.” That analysis is faithful to and properly implements Loper Bright and should be followed by other courts: subject to constitutional limits, only express—as opposed to implicit—delegations of interpretive power to agencies should be eligible for the form of deference contemplated by Loper Bright.
Judge Stranch concurred in the judgment, arguing that “Loper Bright does not give this court the power or the responsibility to define ‘exceptional and extremely unusual hardship’ from new cloth—it instead teaches that reinterpreting a statute should be undertaken only with great caution.” The panel opinion ably countered: “But Loper Bright instructed us to carry out our judicial duty to say what the law is, even when agencies are involved. That’s what we’ve done here.” Let us hope other courts follow the panel opinion’s lead.
The Foundation for American Innovation is hosting a panel discussion and reception about how the Loper Bright case shifts power back to Congress.
The event is in Washington, DC on Wednesday, February 12.
The Supreme Court’s overturning of Chevron deference last year dramatically changed the relationship between the legislative and executive branches. After four decades of Supreme Court precedent holding that courts should broadly defer to agencies in their interpretation of statutes, the landmark Loper Bright case has shifted responsibility back to Congress.
But is Congress up to the task of executing its renewed Article I responsibilities? What capabilities and institutional reforms would better equip Congress for its new role?
To explore these questions, the Foundation for American Innovation invites you to a panel discussion and reception in Washington, DC, on Wednesday, February 12, featuring experts on Congress and the administrative state.
The panel will build upon a recent symposium published by the Foundation for American Innovation and the C. Boyden Gray Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School. Congress after Chevron: Legislative Responses to Changing Deference Doctrines features new papers on Congress’s post-Chevron challenges and opportunities.
No More Deference: Sixth Circuit Relies on Loper Bright to Strike Down Net Neutrality Rules
Congressional Research Service, Feb. 3, 2025
On January 2, 2025, the U.S. Court of Appeals for the Sixth Circuit (Sixth Circuit) vacated the Federal Communications Commission’s (FCC’s) most recent net neutrality rules. The court held that, under the Communications Act of 1934, as amended (the Act), the FCC must treat broadband internet access service (BIAS) as a lightly regulated “information service” instead of a highly regulated telecommunications service.” The court similarly held that BIAS delivered via mobile phones (mobile BIAS) is a lightly regulated “private mobile service” under the Act instead of a highly regulated “commercial mobile service.” Because the FCC’s authority over BIAS and mobile BIAS is minimal, the court struck down the FCC’s net neutrality rules.
The decision marks the first time that a court decided for itself—without deferring to the FCC—how BIAS should be treated under the Act. In prior cases, courts relied on the Chevron doctrine to defer to the FCC’s reasonable interpretations when faced with ambiguous statutory language. The era of Chevron deference ended, however, with the U.S. Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, leaving to the courts the task of definitively interpreting the meaning of statutes enforced by a federal agency.
The Sixth Circuit’s decision also addressed a lingering question: To what extent are lower courts bound by prior cases decided under the Chevron doctrine? In a 2005 decision, NCTA v. Brand X Internet Services, the Supreme Court had applied Chevron to uphold a prior FCC order classifying BIAS as an information service. As a result, litigants debated whether the Sixth Circuit was bound by this decision when interpreting the same statutory terms or whether it could approach the statutory interpretation question with a blank slate. The Sixth Circuit held it had a blank slate. It was not bound by Brand X because, while the interpretive question was the same, the particular agency order was new.
Carrie Severino on Chevron and Net Neutrality in National Review:
“Net neutrality” rules, which restrict internet service providers’ ability to manage users’ internet access—by, for instance, changing speeds or blocking third-party connections based on content, contractual obligations, or other factors—were for many years a point of contention. The alarmist Left long insisted that such regulation from the Federal Communications Commission was needed to avert a panoply of predatory conduct. Experience has shown that panic to be baseless.
And the legal dimension of the issue carries its own lessons. The odyssey of net neutrality directives, the most recent of which the Sixth Circuit held to be unlawful last month, now stands as a benchmark in the courts’ recent repudiation of the arbitrary and undemocratic regime of Chevron deference.
Mitch McConnell discusses Loper on 60 Minutes:
Recent Supreme Court decisions have addressed the power of federal agencies, including Loper Bright v. Raimondo, which was decided last year. With Loper Bright, a majority of justices rejected the established principle known as the Chevron deference, which held that courts should typically give weight to government agencies when interpreting the laws they enforce.
“This new Supreme Court reversed that,” McConnell said. “And that’s a message to Congress, that if you want us to do something, you better spell it out. And it’s also a message to the private sector, that if you think this agency doesn’t have the authority to do this, sue them and you might have a chance at winning.”
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.