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.

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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.

House Majority Leader Steve Scalise (R-La.) announced a series of letters to federal agencies after the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo overturning Chevron deference:

“This week, House Republican Committees are sending letters to their corresponding federal agencies to demand the review of various overreaching regulations in our fight to free the American people from the power-hungry administrative state. Agencies can’t be allowed to run free without any checks on their power – we’ve already seen how frequently federal agencies will abuse their authority. We intend to ensure agencies are held accountable following the court’s ruling and observe the proper checks on their power.”

Read more.

Today, attorneys for a group of New Jersey herring fishermen landed a significant victory at the Supreme Court.  With its ruling in Loper Bright v. Raimondo, the Court has overruled the Chevron doctrine and restored the balance of power between Congress and the Administration. The Loper Bright decision was issued alongside Relentless v Department of Commerce.   

The fishermen in the Loper Bright case face an unlawful requirement imposed on them by an executive branch agency that could force them to surrender 20 percent of their earnings to pay at-sea monitors. Because that fee resulted from unlawful overreach and threatened their ability to make a living, the fishermen decided to challenge the requirement in court four years ago. After a split decision in the D.C. Circuit, the Supreme Court decided to review the Chevron doctrine, which is the legal theory the government cited to justify its controversial monitoring rule. For 40 years, Chevron has required federal courts to abdicate their constitutional role to interpret the law by deferring to agency interpretations of statutes whenever those same agencies deem the law “silent” or “ambiguous.” In practice, such deference permitted agencies to engage in egregious overreach, often at the expense of ordinary citizens. 

Bill Bright, a Cape May-based herring fishermen and eponymous plaintiff in Loper Bright, offered this statement: “We are grateful the Court has overruled Chevron. Today’s restoration of the separation of powers is a victory for small, family-run businesses like ours, whether they’re involved in fishing, farming, or retail. Congress never authorized industry-funded monitoring in the herring fishery. And agency efforts to impose such funding hurts our ability to make an honest living. Nothing is more important than protecting the livelihoods of our families and crews.” 

Read more.