In U.S. v. Bricker, the Sixth Circuit grappled with whether the Sentencing Commission could use a policy statement to expand the scope of the federal compassionate release statute, which authorizes early release for “extraordinary and compelling reasons,” to cover nonretroactive changes in sentencing law, when the en banc Sixth Circuit previously reached the opposite conclusion. In other words, can a federal agency use Brand X to overrule a federal court decision after Loper Bright?  

Finn Dobkin, a Senior Policy Analyst at the George Washington University Regulatory Studies Center, published a working paper titled “Uncertain Authority,” examining recent legal and institutional changes surrounding the Council on Environmental Quality (CEQ)’s authority to issue binding National Environmental Policy Act (NEPA) rules.

In Loper Bright Enterprises v. Raimondo, the Supreme Court ruled that the National Marine Fisheries Service (NMFS) failed to comply with the APA when it promulgated rules requiring commercial fishermen to pay for onboard conservation monitors. As a result, the court overruled decades-long precedent established under Chevron v. Natural Resources Defense Council. Overruling Chevron, Chief Justice Roberts noted that the APA “requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency’s interpretation of the law simply because a statute is ambiguous.” This is important in the context of CEQ’s oversight over NEPA. The text outlining environmental review guidelines is notoriously terse and left agencies with few instructions for what environmental reviews should look like thereby requiring them to exercise independent judgement to interpret the statute.

It is important to note that Loper Bright did, however, affirm Skidmore deference. Under Skidmore, courts may consider an agency’s interpretation based on its persuasive power. This standard relies on several qualitative factors including “[the] thoroughness evident in its consideration…the validity of its reasoning…its consistency with earlier and later pronouncements…and all those factors which give it power to persuade, if lacking power to control.” Unlike Chevron, which required courts to uphold reasonable agency interpretations of ambiguous statutes, Skidmore leaves judges with broad discretion to either adopt or reject an agency’s position.

For CEQ, which now operates without clear statutory rulemaking authority independent of Loper, this creates a precarious legal environment. Courts may uphold CEQ’s interpretations in some cases based on the agency’s technical expertise but reject those same interpretations in other jurisdictions where courts find the reasoning insufficient. For instance, guidance recommending the inclusion of cumulative climate impacts in environmental reviews might be treated as persuasive by one circuit, while another may find it outside the bounds of NEPA’s statutory text. The result is a fragmented landscape in which CEQ’s influence depends heavily on judicial discretion and ideology. As Justice Kagan warned in her dissent in Loper Bright, the shift away from Chevron and toward Skidmore may invite even greater instability:

“The majority’s prescribed way of proceeding is no walk in the park. First, the majority makes clear that what is usually called Skidmore deference continues to apply. Under that decision, agency interpretations ‘constitute a body of experience and informed judgment’ that may be ‘entitled to respect.’ If the majority thinks that the same judges who argue today about where ‘ambiguity’ resides are not going to argue tomorrow about what ‘respect’ requires, I fear they will be gravely disappointed.”

This suggests that irrespective of the new agency deference standard, courts may still have wide latitude to interpret the boundaries of CEQ’s regulatory authority under Skidmore. In the absence of binding precedent, judicial decisions may instead reflect considerations such as legislative intent, broader policy implications, or differing judicial philosophies.

Eli Nachmany has joined the discussion on the Yale Notice & Comment blog about the interaction between the APA’s good cause exception, Loper Bright, and the Trump Administration’s efforts to root out existing unlawful regulations:

Cary Coglianese and Daniel Walters recently published an interesting Notice & Comment post about the President’s memorandum, suggesting that the move shows “just how unsettled, and how unpredictable, the administrative governance game can be in a post-Loper Bright world.” The authors ask: “Did Loper Bright Also Overturn Notice-and-Comment Rulemaking Procedure?” But this is not the right question. The APA’s “good cause” exception established the authority to bypass notice and comment before Loper Bright came down. The question, then as now, is whether delay would contravene the public interest. Loper Bright and the other cited cases merely help with the process of identifying the regulations that qualify for immediate repeal.

Following the law is any federal agency’s first priority. Indeed, in the words of the Supreme Court, “an agency literally has no power to act … unless and until Congress confers power upon it.” Even if a regulation leads to a policy outcome that some might like, that regulation cannot stand if it is inconsistent with either a law that Congress has passed or binding Supreme Court precedent.

The President’s memorandum directing the repeal of unlawful regulations is a win for the rule of law.

The Departments of the Interior and Commerce have proposed to rescind an Endangered Species Act rule defining “harm” because it “do[es] not accord with the single, best meaning of the statutory text” and instead they will “rest on the statutory definition of ‘take.'”

This proposal is in line with a White House directive to remedy existing overbroad and unlawful regulations, as I discussed here. But the rescission does not invoke the APA’s good cause exception to expediate repeal, as my colleague discussed here, and instead invites public comment.

Cary Coglianese & Daniel E. Walters write in the Yale Journal on Regulation’s Notice & Comment blog:

With the ink barely dry in Loper Bright, we are beginning to see just how unsettled, and how unpredictable, the administrative governance game can be in a post-Loper Bright world. With a new memorandum, “Directing the Repeal of Unlawful Regulations,” President Donald Trump has made a bold new move, invoking Loper Bright (as well as other recent administrative law innovations like West Virginia v. EPA’s “major questions doctrine”) to claim authority to rescind scores of existing legislative rules without even following standard administrative procedures. Under the recent presidential memorandum, once an agency determines that a legislative rule is on its face unlawful “under” Loper Bright and other recent general administrative law cases, it must “finalize rules” rescinding those regulations “without notice and comment.” Depending on how readily and extensively agencies arrive at a conclusion that existing rules are no longer legally justified, this “review-and-repeal effort” could amount to a presidential power to force the repeal of large numbers of unwanted regulations that, up to this point, would presumptively have been required to be rescinded only with deliberate care that took into account public input.

Earlier this week, on April 9, 2025, President Trump issued a new memorandum entitled “Directing the Repeal of Unlawful Regulations.”  The memo, which builds on directions set out in Executive Order 14219 (Feb. 19, 2025), instructs the heads of all executive branch agencies to prepare for repealing “facially unlawful regulations” after April 20, 2025. 

AFP Foundation’s Ryan Mulvey published an article in the Yale Journal on Regulation’s Notice & Comment blog on how “Loper Bright will impact FOIA jurisprudence, specifically with respect to judicial review of agency use of Exemption 3.”

“Chevron is overruled.”  With these historic words, Loper Bright eliminated Chevron deference.  The resolution of all legal questions—including the meaning of withholding statutes used with the FOIA—should now be resolved de novo.  Whether the use of extrinsic withholding statutes in the FOIA context is best understood as a matter of “reconciliation,” which might technically trigger review under Section 706, or “incorporation,” under Section 552, the same method for judicial decision-making applies across the board.

When a requester disputes that a record is protected by Exemption 3, a court is obliged to provide its independent, best judgment about the scope and application of the underlying withholding provision.  Of course, there may be instances where “respect” for the agency’s position is appropriate.  And Congress could, in theory, design a withholding statute to grant an agency express discretion to set the bounds of its reach.  But even then, the general rule is de novo review, and the legal limits of the scope of the statute under review remain with the court to determine. 

Liberty University School of Law’s Eric Bolinder published a new paper on “Litigating After Loper.” Bolinder previously represented the fishermen in Loper while at Cause of Action Institute and argued the case before the D.C. Circuit.

Abstract

This article arrives at a critical juncture in Administrative Law and comprehensively answers two burning questions about Loper Bright Enterprises v. Raimondo, the case that overturned Chevron deference. First, what did Loper Bright change about review of agency action? Second, how should lower courts implement the decision? This paper engages a first-of-its-kind, exhaustive review of the major circuit court decisions citing Loper Bright and analyzes how influential judges, scholars, and justices have characterized the impact of the decision. The article defines what role Skidmore “deference” and the major questions doctrine should play in judicial review—while seriously questioning the long-term viability of the latter.

Using this study and foundational administrative law methodologies, I propose a three-step formulation on how judges should tackle statutory interpretation and related constitutional issues in the post-Chevron era. This approach will be helpful to courts, academics, and litigants because it is simple enough to quickly understand but contains the depth necessary to engage some of the hardest textual challenges.

This paper also soundly rebuts the argument made by influential scholars that Loper Bright is simply a rebranded Chevron that does not mark a significant change in administrative law. The article engages directly with these scholars and, through its analytical proposal, stands as a rebuke of this criticism—showing, through both real-world and hypothetical application, just how significantly Loper Bright changed things.

Finally, the article proposes that if Congress responds to the decision by expanding its grants of discretionary authority to agencies, the Supreme Court will have no choice but to both revive a robust non-delegation doctrine and more broadly apply void for vagueness to civil cases. 

Pacific Legal Foundation’s Will Yeatman and Charles Yates write in Notice & Comment about how Bondi v. VanDerStok “has the potential to dent the arc of administrative law. As Justice Alito observed in his dissent, the case could end up being ‘a huge boon for the administrative state.’”

Following Loper Bright, the Justice Department started probing the viability of alternatives to the Chevron doctrine. For example, since Loper Bright, the government has reframed questions of statutory interpretation as policy decisions subject to deferential “arbitrary and capricious” review.

The Salerno standard is another Chevron replacement that has been shopped by the government in the wake of Loper Bright. For example, last year in a challenge brought by Pacific Legal Foundation (where we work) to a 2023 Environmental Protection Agency and Department of the Army Clean Water Act regulation, the Justice Department invoked the “no set of circumstances”standard as a reason for that challenge to fail. Of course, the Salerno approach is unique among these Chevron substitutes, in that the “no set of circumstances” framework is far more favorable to the government than even Chevron ever was.

Yesterday, in American Clinical Laboratory Ass’n v. FDA, a Texas district court properly relied on Loper Bright  to reject the FDA’s attempted ultra vires expansion of its jurisdiction under the Food, Drug, and Cosmetic Act (“FDCA”) to regulate, for the first time, laboratory testing services as manufactured “devices.”  Ever since City of Arlington, court deference to an agency’s assertion of the scope of its own jurisdiction had been a problem.  Loper Bright is the remedy for that ailment.