Senator Schmitt Leads Notice & Comment Symposium on Congress After Loper Bright
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| October 14, 2025
The Yale Notice & Comment blog is hosting a symposium on the U.S. Senate’s Post-Chevron Working Group Report. Senator Eric Schmitt, the driving force behind the working group, has the lead essay in the symposium summarizing the initiative and its importance.
Schmitt highlights three key reasons why Congress must act in the wake of Loper Bright.
First, the bureaucracy will outwait us. The administrative state’s defining feature is not speed but persistence. It is built to endure. It is ensconced with civil-service protections, fueled by mandatory appropriations, and shielded by institutional inertia. It can simply wait for the next election, the next administration, the next court to blink.
He next twice cites AFPF-alum Professor Eric Bolinder:
Second, the courts will splinter. Loper Bright restored the judiciary’s duty to decide questions of law, but it did not supply a fully formed doctrine to replace Chevron. In the absence of congressional clarity, lower courts will fill the vacuum with conflicting tests and standards. Some will cling to Skidmore deference. Others will smuggle Chevron in through the back door via arbitrary-and-capricious review.
Citing Eric R. Bolinder, Litigating Loper Bright: Interpretive Challenges and Solutions for the Post-Chevron Era, 128 W. Va. L. Rev. (forthcoming 2025) (manuscript at 5); Eric R. Bolinder, Dodging Chevron’s Redux: The Proper Place for State Farm Arbitrary and Capricious Review, 24 Geo. J.L. & Pub Pol’y (forthcoming 2026) (manuscript at 1).
And finally:
Third, the culture of congressional abdication will persist. For decades, Congress has treated delegation as a feature, not a bug. Vague statutes avoided political accountability and shifted blame to bureaucrats. But Loper Bright makes that habit untenable.
The Supreme Court’s decision in Loper Bright casts in stark relief the problems with congressional inaction. Unclear delegations to administrative agencies inevitably invite an overeager executive to stretch the bounds of existing statutes. The judiciary must then police these abuses and try to parse vague statutory language. The solution is for Congress to write more precise laws and then to actively respond with clarifying amendments when the executive or judiciary misapplies or misinterprets the law.
Hopefully, the rest of the symposium will explore these crucial issues.
