Yesterday, in Seven County Infrastructure Coalition v. Eagle County, Colorado, the Supreme Court addressed the scope of federal agencies’ obligations under the National Environmental Policy Act (NEPA) to study the environmental effects of proposed agency actions and prepare “detailed” reports, known as environmental impact statements. In the course of grappling with those questions, Justice Kavanaugh’s Seven County opinion may provide some insight into how under Loper Bright the Court may distinguish between questions of law that courts must independently decide and exercises of agency discretion subject to laxer arbitrary and capricious review. 

The Court of International Trade recently invalidated President Trump’s tariffs under the International Emergency Economic Powers Act of 1977 (“IEEPA”).  The government argued, among other things, that the court could not consider the case because of the political question doctrine.

One reason that doctrine may apply is due to “a lack of judicially discoverable and manageable standards for resolving” the case.  The court rejected that as a basis not to hear the case by relying on Loper Bright.

The court wrote:

This reliance on the political question doctrine is misplaced. The court can “manage” the
standards for applying 50 U.S.C. § 1701’s “deal with an unusual and extraordinary threat”
language just as it “manages” the standards for any other statutory enactment that constrains
independent executive action.

…

Even when it goes unmentioned, this principle is a common feature of statutory construction. In the trade context, for example, the antidumping statute permits the imposition of duties only where “the Commission determines that . . . an industry in the United States . . . is threatened with material injury.” 19 U.S.C. § 1673. The court does not automatically uphold every material injury determination of the ITC on lack-of-manageable-standards grounds simply because “threatened with material injury” is an imprecise term that sounds in foreign affairs. Instead, the court consults “the traditional tools of statutory construction” to ascertain the term’s meaning and applies that meaning to specific cases. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 403 (2024) . . . As the Supreme Court explained in Zivotofsky, “[r]esolution of Zivotofsky’s claim demands careful examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and of the passport and recognition powers. This is what courts do. The political question doctrine poses no bar to judicial review of this case.” 566 U.S. at 201.

This is a new and interesting application of Loper Bright in the context of the political question doctrine.  If courts’ core job is determining the legal meaning of terms, that is one fewer reason to find an issue nonjusticiable.  

Bloomberg Law’s UnCommon Law podcast continues its series on the “story behind the fishing industry’s Chevron doctrine challenge.” This episode focuses on “the Supreme Court arguments that overturned Chevron.”

Federal agencies expanding their power beyond congressional intent? Unelected bureaucrats making policy decisions? Regulatory whiplash?! According to the litigants urging the Supreme Court to strike down the Chevron doctrine in the Loper Bright case, those were the harms Americans would continue to face if Chevron deference were allowed to continue.

But striking down the pivotal legal principle that had been in place for 40 years would bring its own risks, defenders of Chevron argued. Scientific and technical decisions would need to be made by judges with no specialized expertise. Regulatory uncertainty would soar, as thousands of existing rules face new challenges. And the Supreme Court itself could be forced to become, as Justice Ketanji Brown Jackson put it, “uber-legislators.”

In part two of our episode on Loper Bright, the high court ostensibly considers the plight of the herring fishermen, but actually looks to decide whether to abandon the Chevron doctrine once and for all.

Featuring:

• Jeff Kaelin, director of sustainability and government relations at Lund’s Fisheries
• Wayne Reichle, president of Lund’s Fisheries
• Ryan Mulvey, counsel with the Cause of Action Institute
• Gillian Metzger, Harlan Fiske Stone Professor of constitutional law at Columbia University
• Lydia Wheeler, co-host of Cases and Controversies & Supreme Court reporter for Bloomberg Law
• Greg Stohr, Supreme Court reporter for Bloomberg News
• Kimberly Robinson, co-host of Cases and Controversies & Supreme Court reporter for Bloomberg Law

A recent Brookings article, titled “Will the Supreme Court’s Chevron decision undercut Trump’s unilateral presidency?,” suggests that “overturning of the Chevron doctrine may unintentionally weaken [President] Trump’s ability to govern unilaterally by empowering lower courts—often selected through strategic forum shopping by his opponents—to more freely block his executive actions.” That somewhat misunderstands the intent and meaning of Loper Bright overruling Chevron. 

Loper Bright is about principle and process—how public policy choices should be made and by whom: the Executive Branch going it alone or Congress through duly enacted legislation? The whole point of repudiating Chevron’s fiction that statutory ambiguity or silence transferred to the Executive Branch power to make policy choices announced in legislative rules with the same force as statutes is to put that power back where the Constitution put it, vesting all legislative power in Congress, subject to constitutional limits on federal power.  

The Brookings Institution published a commentary piece from Frank J. Thompson, Distinguished Professor of Public Affairs Emeritus & Faculty Director at Rutgers University, arguing that “[t]he Supreme Court’s overturning of the Chevron doctrine may unintentionally weaken Trump’s ability to govern unilaterally by empowering lower courts—often selected through strategic forum shopping by his opponents—to more freely block his executive actions.”

This article explores factors that will probably lead the Supreme Court’s reversal of Chevron to have a modest negative effect on the ability of Trump’s unilateral presidency to achieve its goals. Historically, the doctrine has galvanized some deference to the executive, primarily at the district and appellate court levels. The Supreme Court had abandoned obeisance to the doctrine more informally prior to Trump’s first term. Chevron’s reversal opens the door to the greater influence of the courts in shaping public policy. It elevates the potential importance of a judge’s partisan policy preferences in rendering decisions. As a result, forum shopping by opponents of the administration could become more strategic, and the administration’s success rate in lower courts may decline. But the impact of any such development on the Trump unilateral presidency will decline sharply if the Supreme Court curtails the use of nationwide injunctions by the lower courts.

As Loper Bright continues to work its way through the courts, it’s also been rapidly added to administrative law casebooks across the country. University of Arizona – James E. Rogers College of Law Professors Shalev Gad Roisman and Oren Tamir had a novel idea to do a book review of how Loper, and other new administrative law cases, are being treated in casebooks.

They “review the supplements to twelve of the leading administrative law casebooks issued at the end of the Supreme Court 2023 Term, which culminated in blockbuster decisions in Corner Post, Jarkesy, and Loper Bright.” 

From the Abstract

They find that:

As gleaned through the supplements, the field of administrative law is presently caught in an overly polarized reaction to the Roberts Court Revolution and the preexisting status quo—of either being for the Roberts Court Revolution and against what preceded it or against the Roberts Court Revolution and for what preceded it. Because of this dynamic, we argue that the supplements and casebooks do not yet do a sufficiently good job of enabling administrative lawyers to imagine a new and different administrative law future, a future that lies beyond either the Roberts Court Revolution or what preceded it.

Pictures of a Revolution: Administrative Law in a Time of Change, 123 Michigan Law Review 1105 (2025).

TechFreedom’s Corbin Barthold on the FedSoc Blog explores whether the Trump Administration has “Good Cause” to skip notice and comment in response to the Administration’s executive order directing agencies to repeal “unlawful, unnecessary, and onerous regulations:”

New precedents often raise as many questions as they answer. Take the first case on the executive order’s list: Loper Bright v. Raimondo (2024), which scrapped Chevron deference. Now judges must apply a law’s best reading, rather than any plausible reading an agency might offer. The administration seems to think that, with Loper Bright on the books, agencies must now repeal, without public input, any rule that does not reflect the one correct interpretation of a statute. But working out that interpretation is precisely what the notice-and-comment process is for. And in any event, Loper Bright said that it did “not call into question prior cases that relied on the Chevron framework.” If the Court exercised such restraint, by what authority may agencies bull ahead? Might the Court conclude that past agency reliance on Chevron, like past court reliance on Chevron, remains lawful? Repealing rules without notice and comment doesn’t resolve these uncertainties—it assumes them away. The APA does not grant agencies such conveniences.

It is strange to treat Loper Bright as an agency-empowering decision. “Whatever respect an Executive Branch interpretation” may deserve, it says, quoting a case from 1840, a judge is not “bound to adopt the construction given by the head of a department.” The APA, too, makes clear that “the reviewing court shall decide all relevant questions of law.” But if an agency’s understanding of the law receives no deference, an agency should not be declaring, on its own authority, which of its regulations are so unlawful as to open up the “good cause” shortcut. The proper course is to go through notice and comment, issue the repeal, then let the courts make the final call.

Cass Sunstein’s latest piece on Loper Bright was published in the Duke Law Journal: Our Marbury: Loper Bright and the Administrative State. Here’s the abstract:

Loper Bright, overruling Chevron, is unmistakably part of administrative law’s current “Grand Narrative,” which sees contemporary administrative agencies with suspicion, as a product of successive breaches of Article I, II, and III of the Constitution. The decision should be seen as our Marbury v. Madison—an effort to insist that it is emphatically the province and duty of the judicial department to say what the law is. But will the decision produce large changes? The answer depends, of course, on the meaning of both Chevron and Loper Bright. Under Chevron, courts hardly gave a blank check to agencies; on the contrary, they frequently invalidated agency interpretations of law. How much will invalidation rates rise? We cannot give a confident answer, in part (1) because Loper Bright retains Skidmore (which calls for respectful attention to agency interpretations); in part (2) because Loper Bright recognizes that Congress sometimes explicitly or implicitly delegates interpretive authority to agencies; and in part (3) because (and these must be counted as some of its effects) Loper Bright will (a) increase litigants’ incentive to attack agency interpretations and (b) reduce agencies’ incentive to adopt adventurous interpretations (though agencies may have other incentives to do that). Any numerical projection would be hazardous, but Loper Bright gives a clear signal, a green light to federal courts where Chevron gave a yellow light—which means that it is reasonable to predict a nontrivial increase in judicial invalidations (other things being equal). It is also safe to predict that in the near future, the combination of Loper Bright with increasing judicial skepticism about the administrative state will result in a nontrivial increase in invalidation of regulations designed to protect health, safety, and the environment. In the near future, Loper Bright will also lead to a significant increase in ideological divisions in the lower courts. Still, Loper Bright is our Marbury, and will, sooner rather than later, be seen as such in mounting conflicts between agencies and courts.

Michael Rapoport at Bloomberg Tax has a piece on how “Congressional tax writers are taking steps to head off any future legal challenges to their new tax bill, but it’s a delicate balancing act.”

The bill’s directives for Treasury to act are “more deliberative and detailed” than usual, and that added specificity “may be aimed at reinforcing the Treasury’s authority to issue regulations in anticipation of potential challenges” after Loper Bright, said Jennifer Breen, a partner at Morgan Lewis & Bockius LLP.

The ruling was “a wake-up call to Congress,” Bodoh said. “Loper Bright has caused a re-focus on regulatory validity. I don’t think Congress is leaving any of this to chance.”

The tax bill’s moves suggest “an evolution in the relationship between Congress and the IRS,” Breen said. Congress isn’t just telling Treasury to act, it’s also directing Treasury exactly what to do in many cases, “leaving less to agency discretion than ever before.”