New Law Review Article on “Chevron Stare Decisis”

Emory Law School’s Jonathan Remy Nash writes on “Chevron Stare Decisis in a Post-Loper Bright World” in the Iowa Law Review. The abstract:

In its June 2024 decision in Loper Bright Enterprises v. Raimondo, the Supreme Court jettisoned the longstanding Chevron doctrine, which had directed courts to defer to agencies’ reasonable interpretations of ambiguous statutes. The Loper Bright Court attempted to minimize the substantial effect this change would have on administrative law and governance by declaring that “[t]he holdings” of cases that relied on the Chevron test to conclude “that specific agency actions are lawful . . . are still subject to statutory stare decisis despite our change in interpretive methodology.” But there are two problems with Chevron stare decisis. First, Chevron stare decisis is an ambiguous concept. Second, leaving to the side the cases where the result would be no different under Loper Bright, Chevron stare decisis is deeply problematic. Providing stare decisis effect to pre-Loper Bright decisions would leave some agencies, but not others, with discretion to choose among reasonable interpretations, or lock in Chevron-era interpretations that are not the best interpretations, as Loper Bright directs. These outcomes will have a deleterious effect on judicial legitimacy and democratic accountability.