[I]t was morning, and lo! now it is evening,
and nothing memorable is accomplished.
— Henry David Thoreau1
The writing was on the wall, though the ink was still fairly wet. A few years ago, scholars guessed that Chevron2 would remain secure.3 Even in 2022, when the Court resolved a number of blockbuster administrative law cases without a glance at Chevron,4 it still seemed possible that the Court might decide to fine-tune administrative law doctrine in an “incremental[ist]” fashion.5
In June 2024, though, the Court in Loper Bright Enterprises v. Raimondo6 ended Chevron’s purgatory.7 How much of a shock to the system will Loper Bright prove to be? It is still too soon to gauge the on-the-ground difference.8 A look at the opinion reveals that Loper Bright contains both perils and possibilities for agencies. Under Chevron, judges disagreed over whether a statute was “clear,” and they could and did invalidate agency action when it ran against the statute’s “clear” meaning.9 Under Loper Bright, judges will disagree over what reading of the statute is “best,” and they can and will invalidate agency action when it runs against the statute’s “best” meaning.10 Under Chevron, statutory silences and ambiguities came to be treated as implicit delegations.11 Under Loper Bright, a statute that does not spell out a delegation in pellucid terms may nonetheless qualify as a delegation of interpretive authority to an agency.12 Under Chevron, agencies were often, but not always, given deference to their resolution of statutory ambiguities within their zones of expertise.13 Under Loper Bright, though the agency’s entitlement to deference is abolished,14 an agency’s interpretation will continue to receive “due respect” “to the extent it rests on factual premises within [the agency’s] expertise.”15
Observing these and other parallels, a number of commentators have predicted that from the ashes of Chevron deference there will rise, phoenix-like, a new regime in which agencies will continue to possess discretion,16 receive deference,17 and command respect.18 Professor Thomas Merrill likewise appears to anticipate a degree of resurgence in his erudite Comment, the title of which couples the “[d]emise of [d]eference” with the possibility of a “[r]ise of [d]elegation to [i]nterpret.”19 A crucial determinant, as Merrill points out, will be “just how broad[ly] or narrow[ly] the Court will tailor the category of delegations to agencies to interpret.”20 But for reasons that Merrill carefully outlines, it is possible that Loper Bright could ultimately prove to be “a new framework accommodating significant acceptance of agency interpretations” rather than a “power grab” — at least in the hands of judges with the right “attitude.”21
Picking up where Merrill’s Comment leaves off, this Response looks at the forces that might shape Loper Bright’s future development. Some would warmly welcome a world in which Loper Bright proved to make only relatively modest inroads on the Chevron regime. Others, to put it mildly, would not. The sentiment underlying the former position is obvious and is set out at length in Justice Kagan’s searing dissent — if courts replace agencies as the primary interpreters of statutes, the quality and quantity of federal regulation will be corroded, and America will suffer for it.22 The sentiment underlying the latter position is also not hard to grasp: Chevron was unlawful, the overruling of Chevron must mean something, and Loper Bright’s shoulder-to-shoulder six-Justice majority could not have meant to permit the reemergence of anything resembling the Chevron regime.
This will be a dispute over the latent possibilities in the Loper Bright decision, and by the same token a dispute over Chevron’s legacy — over what, if any, legacy Chevron will be permitted to leave. The short-run impact of Loper Bright will depend on which side gains the upper hand in this dispute.
In the longer run, this abandoned landmark may prove to be pertinent in a different sense. An ancient principle of law and justice — namely, “you broke it, you own it”23 — means that it is now incumbent on the Roberts Court to ensure that the Loper Bright regime is judicially administrable, fair, and politically legitimate enough to take the place of the monumental precedent that it took it upon itself to demolish.24 As we have recently witnessed, it is not easy to create a coordinating framework for governing court-agency contestation over law and policy. And as none other than Merrill has elsewhere taught us, the most promising place to look to understand how this feat might be accomplished is to learn from the saga of Chevron’s demise.25 If those lessons are absorbed into the nascent Loper Bright regime, then that will be Chevron’s most enduring legacy.
Drawing on Loper Bright and on Merrill’s Comment, Part I sets out how the Loper Bright framework in principle and in application has the potential to preserve dimensions of the realm of deference that Chevron once safeguarded. Anticipating resistance to this understanding of Loper Bright, this Part explains why Loper Bright should not be cabined to avoid recreating outcomes that echo or resemble Chevron. Part II looks to the road ahead. If the new Loper Bright regime is to succeed in transcending the kinds of problems that came to conquer Chevron, the Court must learn the lessons of Chevron’s fall. A brief conclusion follows.
I. The Ambivalence of Loper Bright
Loper Bright will go down in the annals of administrative law as the case that bluntly overruled Chevron.26 But Loper Bright contains noteworthy ambivalences that have the capacity to be developed in ways that could preserve to a significant extent the power of agencies to develop and interpret statutory schemes. Alongside that, Loper Bright eschews reliance on the Constitution and on nondelegation concerns — a fact that also has uncertain implications. These known unknowns will make Loper Bright into something like the rope in a game of tug-of-war between proponents and opponents of administrative power, with the two sides each pulling on the decision to support their preferred vision for how power should be allocated when courts review agency action. In this dispute, the impetus to read Loper Bright to avoid recreating Chevron-like results may exert significant force. This Part begins by explaining these points and ends by explaining why it misunderstands Loper Bright to treat it as rejecting Chevron-like results.
Let us begin by highlighting some key points about Loper Bright, many more of which are canvassed at length in Merrill’s thorough Comment.27 First, Loper Bright allows for delegation to agencies of considerable power. In a crucial passage of Loper Bright, the Court cited a number of statutes that it characterized either as “express[]” delegations or as statutes that authorize agencies to exercise discretion.28 In the former category are laws that provide that a statutory term will be “give[n] meaning” by the agency.29 In the latter category are statutes that allow agencies to flesh out the details of a statutory scheme and statutes that authorize agencies to take steps that they adjudge to be tailored to achieve hazily defined objectives.30 None of the cited statutes use magic words (“with these words, I thee delegate . . . .”). It is true that mere ambiguity is no longer sufficient to show that Congress has “delegate[d] discretionary authority to an agency.”31 But a crystalline statement of the magic-words kind is not necessary either. And Loper Bright contemplates that agencies may be delegated “discretionary authority” to make policy judgments within the boundaries of the authority Congress has delegated to them.32 As Merrill underscores, “[t]his appears to preserve, at least in the context of express or implicit delegations, . . . a realm in which agencies have flexibility to adjust their interpretations over time.”33 Moreover, Loper Bright does more than just authorize courts to uphold agency action: it commands them to do so when those actions fall within the terms of a particular statute’s delegation.34
Second, the fact that an agency interpretation does not receive automatic or across-the-board deference does not denude it of influence. Repeatedly invoking Skidmore v. Swift & Co.,35 the Court in Loper Bright instructed courts to be mindful of the agency’s experience and its “informed judgment.”36 The opinion marks as “especially informative” agency interpretations that draw on “factual premises within [the agency’s] expertise,”37 and as “especially useful” those agency interpretations that “issued contemporaneously with the statute, and which have remained consistent over time.”38 If there is a hierarchical difference between “especially informative” and “especially useful” agency interpretations, Loper Bright does not appear to say so. Drawing on these “informative” and “useful” agency views, courts may thus conclude that the best reading of contestable statutory language aligns with the agency’s interpretation of that language, even if the naked text of the statute would seem to point a novice reader in a different direction. As Merrill dryly hints, nothing much of substance may turn on whether one calls this “deference” or reasoning to the “best” interpretation, except that doing the former is liable to get you in hot water.39
Third, the fact that the Loper Bright is (at most) a statutory holding is also noteworthy.40 Though Loper Bright began by citing Article III and was peppered with references to Marbury,41 the decision is an interpretation of Section 706 of the APA rather than an application of the Constitution.42 That framing was helpful to the Court’s rather muddled attempt to shore up the myriad past decisions — “undoubtedly thousands”43 of them — in which courts have relied on Chevron to defer to agencies’ reasonable interpretations of statutory ambiguities.44 If the Chevron framework were constitutionally infirm, then these past decisions would not just have been decided by a merely wrong methodology, but by an unconstitutional (or really wrong) methodology, which would increase their vulnerability going forward and amplify the disruption caused by Loper Bright.45 Instead, Loper Bright, though it claimed to “leave Chevron behind,” granted these offspring of Chevron visas of uncertain duration to stay on in its brave new world of independent judicial judgment.46 No Justice — not even Justice Thomas, who believes Chevron to be unconstitutional47 — objected to this carve-out. Thus, Loper Bright is not just a “tombstone no one can miss,”48 as Justice Gorsuch crowed, but is also thousands of missing tombstones.49
Fourth, Loper Bright’s holding is noteworthy for its silence concerning nondelegation. Chevron was premised on the proposition that the delegation to an agency of the power to make legally binding rules and to “make . . . policy choices” was legitimate.50 The fact that Chevron allowed agencies to exert such authority over private rights and duties, over the governance of American society, was at the heart of the most fervent critiques of Chevron.51 Yet Loper Bright too is premised on the proposition that Congress can delegate the power to make legally binding rules and policies to agencies, even those of the sort that regulate private rights and liabilities in serious, far-reaching ways. In enumerating examples of statutes that authorize agencies “to exercise a degree of discretion”52 — and without hinting at any doubt concerning their constitutional validity — Loper Bright cited laws that allow agencies to specify which employees must get a minimum wage;53 to require firms to report safety hazards to the government;54 and to regulate pollution and power plants in accordance with an agency’s, not Congress’s, determination of what rules are “appropriate,” “necessary,” or needed to assure “protection of public health.”55 The Loper Bright Court cited to a case and page56 wherein the Court in 1977 had explained that when Congress has “expressly delegated” power to an agency, “the Secretary adopts regulations with legislative effect. A reviewing court is not free to set aside those regulations simply because it would have interpreted the statute in a different manner.”57 Evidently, the Loper Bright Court generally prefers to call this kind of thing an “authoriz[ation]” of the “exercise of . . . discretion”58 or a “confer[ral]” of “discretionary authority”59 rather than to name it as a delegation of the power to make legally binding rules and set policy. But these citations are ones that any proponent of a reinvigorated nondelegation doctrine should shudder to read.60
This docility on nondelegation is remarkable on at least two scores. Six years ago, the close-fought decision in Gundy v. United States61 and a separate statement from Justice Kavanaugh in Paul v. United States62 seemed to indicate that the Court was one tick away from a full return to the nondelegation doctrine’s “one good year” of 1935.63 Yet in 2024, Justice Thomas wrote for himself alone in Loper Bright when he contended that the overruling of Chevron was a necessary corollary of the nondelegation doctrine.64
The second and related point is that the Loper Bright Court’s implicit acceptance of the propriety of delegation extends a turn that became visible in the recent “quartet” of decisions setting out the new major questions doctrine.65 The nondelegation doctrine was a “dog that didn’t bark” in those cases.66 The incompatibility of the new major questions doctrine with a commitment to nondelegation was apparent at the time of those decisions to me67 and also to Professor Merrill.68 Indeed, I argued, the “best conceptual tether”69 for the new major questions doctrine was the opposite of a commitment to nondelegation: it was the “exclusive delegation” principle that Congress does have the power to delegate, but that only Congress does.70 The exclusive delegation principle, as Merrill has elsewhere explained, “preserve[s] . . . legislative supremacy,” but it “is enforced not by declaring a statute unconstitutional, but through ordinary statutory interpretation by reviewing courts.”71 The quartet’s enunciation of a clear statement rule for major questions would “make[] no sense” if the Court were committed to the view that Congress may not delegate legislative authority to the executive branch.72
Loper Bright continued the quartet’s reticence concerning nondelegation as well as its implicit acceptance of exclusive delegation. As in the three cases in the major questions quartet lost by the government, the Court in Loper Bright “nowhere articulated or embraced the principle that agencies may not exercise legislative power or that Congress may not delegate legislative power — the ideas embraced by proponents of a more stringent nondelegation doctrine.”73 Instead, the cases in the quartet — and now Loper Bright — “align better” with the exclusive delegation principle.74 To put it more plainly, the Loper Bright Court in essence said, “Congress may delegate legislative power to agencies, those delegations may be either explicit or implicit, and in reviewing agency action, the duty of courts is to decide independently whether the agency is acting within the scope of that delegation.”75 What Loper Bright did not say is, “Congress cannot delegate legislative power to agencies, and agency resolution of statutory ambiguities under Chevron amounts to the exercise of legislative power, so courts may not defer to agencies’ resolution of such ambiguities.” Five Justices in the majority could have, but did not, join Justice Thomas’s opinion expressing exactly the latter thought.76
The unspoken premise that delegation of legislative power is a legitimate tool that Congress may use, rather than an illicit third rail that must be avoided or forsworn, was, alas, just that — an unspoken premise, not a proposition writ plainly on the face of the Loper Bright decision. But it is there nonetheless. And it is another way in which Loper Bright may be understood as offering resources for legitimating agency power, not just as a toolkit for cabining or crushing it.
The cash value of all this ambivalence in Loper Bright is far from certain. Consider first the nondelegation doctrine. The Court may of course still be on the brink of reviving the nondelegation doctrine — nothing in Loper Bright does or could formally prevent such a holding from arriving six months from now or for that matter next week. Indeed, some may read the Loper Bright decision as inviting a nondelegation resurgence, because of its repeated and needless references to “constitutional limits” on delegation.77 Still, it would be uncommonly silly for a Court that had just set out whole categories of statutes as exemplars of delegations to agencies that must be “respect[ed]” to turn around on a dime and categorically hold that delegation of legislative power was unlawful.78
Consider next — while taking as constant the current state of nondelegation doctrine — how Loper Bright will affect judicial review of agency action. As just summarized, Loper Bright held that within the permissible constitutional bounds of delegation — which remain, as of this writing, the expansive parameters drawn by the intelligible principle test79 — agencies have the authority to act within the scope of their delegated authority, even if they do so by making legally binding rules that affect important spheres of private conduct.80 Loper Bright abolished the Chevron-era presumption that all statutory ambiguities qualify as implicit delegations.81 Jettisoned along with that has been the Chevron-era requirement that courts “defer” to agencies’ readings of ambiguous statutes.82 In their stead, however, is Loper Bright’s parting instruction: a new commandment to “respect the delegation,”83 and the additional injunction that respect-worthy interpretations include those that are based on “factual premises within [the agency’s] expertise”84 and those that are longstanding and contemporaneous with a statute’s enactment.85 Altogether, then, the decision departs in important ways from the Chevron regime, but it still “contains several familiar elements”86 that could be developed in a way that would underwrite significant agency power — much as Chevron did.
All this falls straight out of the opinion and much of it comports with Merrill’s assessment of it to boot.87 Yet in some quarters alarm bells will ring at this reading of Loper Bright. To illustrate why, it is worth pausing on certain passages of Merrill’s Comment that — though they are Merrill’s good-faith assessments of Loper Bright’s meaning — could almost be called opinion-drafting advice for lower courts. In discussing an emphatic command of Loper Bright — its direction to courts to adopt “the best” interpretation of the statute88 — Merrill emphasizes that judges “must avoid any suggestion that they are upholding the agency interpretation even though they do not regard it as the best,” but underscores the “striking[]” point that “if the court is persuaded that Congress has expressly or implicitly delegated authority to the agency to interpret the provision at issue, it may uphold the agency interpretation as reasonable even if the court thinks it would have ruled differently.”89 Relatedly, in describing the court’s obligation to apply its “independent judgment” using the tools of interpretation authorized by Loper Bright, Merrill explains that “[i]f the court concludes that these tools of statutory interpretation support the agency’s interpretation, one could call this a form of ‘deference’ to the agency view,” but adds that “the preferred locution is that these interpretative tools may indicate to the court that the agency’s interpretation is ‘the best’ interpretation.”90
Those who were opposed to Chevron deference will not take lying down a reading of Loper Bright that treats it as merely “restraining the use of the rhetoric of deference.”91 After all, courts do not overrule cases as monumental as Chevron for cosmetic purposes. As critics of Chevron will point out, Loper Bright held that the Chevron regime was unlawful and that it produced bad outcomes, and it overruled Chevron to cure that unlawfulness and prevent those bad outcomes. Ergo, Loper Bright should not be understood to allow the recreation of anything like the outcomes produced by the Chevron regime — no matter what “locution” or “rhetoric” those outcomes are couched in.
Indeed, complaints in this register are already being voiced. In a recent D.C. Circuit decision, the dissent accused the majority of “revert[ing] to a Chevron-like framework” by failing to adopt the “best interpretation,”92 while the majority’s rejoinder was to deny that its interpretation did any such thing.93 Post-Loper Bright cases in which agencies prevail will predictably spur such accusations of Chevron “smuggl[ing]”94 — the aim of which will be to urge judges to reject any understanding of Loper Bright that hints of reversion to Chevron.
In the already unfolding tug-of-war over the meaning of Loper Bright, that anti-circumvention reading of the decision may be seductive. But it is also wrong. Judges applying Loper Bright should not shy away from reaching Chevron-resembling outcomes.
The basic reason why is that to do so would misunderstand the aim and role of the Loper Bright decision. Loper Bright was not an instruction to courts to avoid Chevron-ish outcomes. Rather, Loper Bright was a self-conscious effort to craft a framework for judicial review of agency interpretation that will endure going forward. Loper Bright specifies a decisional process that requires judges to engage in independent interpretation of the metes and bounds of congressional delegations to agencies, on a statute-by-statute (or provision-by-provision) basis. But — and this is the critical point — Loper Bright is formally agnostic as to the results of that decisional process. It allows judges to conclude that the “best reading” of a statute is that Congress has given a great deal of power to an agency and that the agency has correctly used that power. The fact that such a conclusion also happens to be one that Chevron would have allowed had it not been overruled is not a reason to avoid it. On the contrary, that this new framework allows for significant agency authority over statutory meaning makes perfect sense: in a system premised on legislative supremacy, any responsible framework for resolving court-agency conflicts concerning legal interpretation will accept that Congress can legitimately choose to designate agencies, rather than courts, as the entities that will “give meaning” to statutes.95
It is worth noting that, though it is not common, it is not unheard of for doctrine to “hydraulic[ally]” adapt to restore or preserve results earlier allowed by rejected precedents or disfavored doctrines when alternative legally valid pathways to those results are found.96 Almost by definition, someone is going to be unhappy when that happens — namely, whichever coalition or interest group was powerful enough to muster enough support to get a certain case or doctrine rejected is not going to appreciate seeing the outcomes that were underwritten by the older case or doctrine get recreated or preserved at a later time by an alternative doctrinal pathway. But in various domains, examples appear of the regeneration or preservation of results that the Court’s earlier decisional case law had earlier placed out of bounds.97
To pluck out one contemporary instance from a domain of law familiar to most readers, consider the evolution of personal jurisdiction doctrine. In the era that followed the 1945 decision in International Shoe Co. v. Washington,98 corporations were subject to general personal jurisdiction in states in which they had “continuous and systematic” presence.99 Decades on, in 2014, the Court in Daimler AG v. Bauman100 narrowed that category so that general personal jurisdiction over corporations existed only in states in which the corporation was headquartered or incorporated.101 In 2017, the Court defended the boundaries of that category in Bristol-Myers Squibb Co. v. Superior Court,102 in which it held that the court below had erred when it adopted a “sliding scale approach” to specific personal jurisdiction that allowed “extensive forum contacts that are unrelated to [the plaintiff’s] claims” to make it amenable to suit in the state.103 Then, however, in 2021, came Ford Motor Co. v. Montana Eighth Judicial District Court,104 in which the Court allowed personal jurisdiction over a pair of suits that were not directly connected to the company’s activities in the forum.105 The Ford Court found that there was an “affiliation” between the forum and the suit sufficient to support specific personal jurisdiction106 — almost as though there were a “sliding scale approach” to personal jurisdiction rather than a strict distinction between general personal jurisdiction and specific personal jurisdiction.107 The upshot is that some suits that could no longer be brought on a general personal jurisdiction theory will now be able to proceed on a specific personal jurisdiction theory. This partial doctrinal snapback happened because, as Professor Zachary Clopton put it, “the relationship between general and specific jurisdiction” is such that “[i]f one is contracted, that is necessarily going to put pressure on the other to expand.”108
A related phenomenon — doctrinal migration — may be found in the intertwined arcs of due process and First Amendment doctrine. Pierce v. Society of Sisters109 and Meyer v. Nebraska110 were initially based in liberty of contract.111 They later were cast as First Amendment cases,112 only to subsequently become relocated within the right of privacy protected by substantive due process.113 Tomorrow, if it becomes untenable to maintain that category of substantive due process,114 the cases may return again to the First Amendment. Other liberty of contract results have followed the same route of migration to the First Amendment’s friendlier doctrinal climes.115 Likewise, the Due Process Clause “has become a refuge of sorts for constitutional principles that . . . would otherwise be homeless as a result of having been exiled from the provisions in which they may have originally been intended to reside.”116
These examples of doctrinal recreation or preservation may be helpful to understanding Chevron, Loper Bright, and the relationship between them, which may similarly prove to be “hydraulic” in its dynamic. One way to say this is that there are overrulings and then there are overrulings. The overruling of Chevron was not like the overruling of, say, Plessy.117 Chevron’s overruling was not a root-and-branch rejection of administrative power the way that Plessy’s overruling was a rejection of Plessy’s poisonous premises. If courts seem to be smuggling Chevron-like concepts into their decisions, that is only because the Court did the same in Loper Bright. And insofar as Loper Bright in application proves to reprise dimensions of the Chevron-era landscape, that will be because Loper Bright contemplates those results. Some critics of Chevron will be disappointed if Loper Bright turns out not to be the death knell for administrative power. But “was-it-all-for-this”118 kind of thinking is not the right way to think about legal decisionmaking in general, and it should carry no weight in how courts read Loper Bright in particular.
II. Learning from Chevron’s Fall
“The question before the Court,” as Merrill noted, “was whether to institute a type of regime change.”119 The term “regime change” is apt. Loper Bright is the Court’s attempt to set out a durable new regime that would resolve court-agency conflicts concerning legal interpretation. As illustrated by the story of Chevron’s rise and fall, such regimes are subject to various pressures that “always and inevitably arise in calibrating the proper allocation of authority between agencies and courts to say what the law is.”120 These pressures may be either internal or external to the framework, and over time they can extract a toll. The longevity and resilience of the Loper Bright framework going forward is going to depend on whether it can succeed in navigating the kinds of strains that ultimately undermined Chevron. Following a path suggested in Merrill’s other writings,121 this Part draws out lessons from Chevron’s demise and explains how they may bear on the nascent Loper Bright regime.
Begin by surveying the chief factors that caused Chevron’s collapse.122 A major one was the most obvious: Chevron’s promise of simplicity ultimately disintegrated. A “great strength” of the Chevron doctrine, at least as advertised, was that it set out a “simple and readily comprehensible formula” for allocating interpretive authority as between courts and agencies phrased in a “common vocabulary” that courts and agencies could easily grasp.123 The quickly apparent weakness of the formula was that its two component questions — when is a statute clear, and when is an action reasonable? — were both highly malleable.124 The additional refinements introduced by the Court to the Chevron test125 transformed what began “as a relatively simple two-step” into at least a “minuet,”126 even if not a “dizzying breakdance.”127 And the recent addition of the new major questions doctrine as a “canon of antideference” was the bale of hay that broke the camel’s back.128
A second factor was that the Chevron doctrine came to be seen as, in a word, unfair.129 The heart of the doctrine was that it did not provide a level playing field, but instead weighted the scales so that the agency would win if the statute was ambiguous and the agency’s interpretation got over the threshold of reasonableness.130 This tilt, Professor Philip Hamburger charged, was a “systematic bias” that amounted to nothing less than a flat Fifth Amendment due process violation.131 As Merrill more mildly notes, the argument that Chevron was unfair “has some force, especially in the context of Justice Gorsuch’s favorite examples involving ‘ordinary people’ protesting against the action of a large impersonal bureaucracy.”132 A rule of agency deference that makes eminent sense in the context of regulating complex and technical scientific and industrial questions — the kinds of questions on which Justice Kagan focused133 — appears in a different light when it also means that immigrants get deported and veterans lose their benefits — the kinds of questions on which Justice Gorsuch focused.134 A deficit of fairness is also the basic thrust of the complaint that Chevron allowed too much leeway to agencies to change course and that it thereby played havoc with settled expectations and “affirmatively destroy[ed]” reliance interests.135
A third — and in pragmatic terms, perhaps the most important — factor in Chevron’s demise was a sharp change in “the politics of deference.”136 Chevron started as a doctrine favored by conservatives because it was “thought to facilitate deregulatory initiatives by the Reagan and Bush Administrations.”137 Conservative political opposition to Chevron gradually coalesced in the late 2000s and became pronounced after 2016.138 By 2017, an “anti-administrativist[]” and wide-ranging “attack” on regulatory power was in full view.139 Opponents of the administrative state drew support from “a well-funded network of libertarian paralegal institutions — think tanks, legal centers, and others — that have consistently urged both critiques of Chevron deference in particular and skepticism about the administrative state in general.”140 By 2022, a number of individual opinions had issued from various Justices castigating Chevron deference,141 while others had seemed “at least skeptical of some of its applications.”142 And these critiques ultimately culminated in Loper Bright’s overruling of Chevron.
Last and in this case also least, there is a fourth factor that led to Chevron’s demise that is ironically minor in its significance relative to the others — the proposition that Chevron deference was incompatible with section 706 of the APA. The argument that Chevron deference is antithetical to the APA was late-breaking and flawed.143 It was also, as Merrill notes, inconsistent with the Court’s recent invention of the new major questions doctrine: because that doctrine “has no analog in pre-APA decisional law, . . . on the majority’s reasoning in Loper Bright, . . . the major questions doctrine violates the APA.”144 The APA argument was the legal vehicle into which the other three factors were channeled and packaged, rather than a claim that on its own would have carried the day.
The first three, then, are the three real contributors to Chevron’s demise. First, its promise of simplicity crumbled. What began as a clean two-step test morphed into an intricate series of steps and exceptions. Second, critics came to see the doctrine as fundamentally unfair, both in its impact on certain cases affecting individuals and in its broader systemic consequences for predictability and reliance. Third, and perhaps most crucially, the politics around deference shifted dramatically. Conservatives, who once championed Chevron as a tool for deregulation, turned against it. This opposition gained support and momentum through a network of conservative legal institutions that systematically challenged both Chevron and the administrative state. Lastly, and of least importance, there was the legal argument that Chevron violated the APA. This belated claim had serious flaws, but it provided a convenient legal leading edge for all the other objections.
The lessons for Loper Bright follow from this diagnosis of the three key challenges that beset Chevron and ultimately triggered its demise: judicial administrability or “workability,” fairness, and political legitimacy. Going forward, the Court must address all three if it hopes for its regime to prove more durable than Chevron.145
First, the Court must ensure that Loper Bright is workable, in the sense of being clear and predictable. The Loper Bright Court’s eagerness to lay out a full-throated case for dismantling and overturning Chevron came at a cost: it did not offer a clear roadmap for how courts should exercise their newly central power of independent legal judgment when evaluating various kinds of delegations and the extent of agency authority to act within those delegations. The lacunae in Loper Bright create the real risk that it will repeat Chevron’s trajectory by hurtling from “appealing simplicity”146 to bewildering complexity. The Court noted disparagingly of Chevron that it “launched and sustained a cottage industry of scholars attempting to decipher its basis and meaning”;147 but if that’s the test, Loper Bright is already failing, for a “cottage industry of scholars” has already emerged to analyze Loper Bright, and its business is booming.148 This surge of academic attention is not because scholars have nothing better to do; it reflects genuine uncertainty about how the Loper Bright framework should operate in various legal domains and upon different types of agency pronouncements.149 If Loper Bright is to avoid Chevron’s fate, the Court needs to provide clearer guidance about how Loper Bright should work in practice before new reticulated schemes of multi-step tests and doctrinal boxes rush in to fill the gaps.
A related concern is maintaining consistency across courts in review of agency action. The Court’s instruction to find the “single, best meaning”150 of a statute was meant to sound straightforward, but that instruction must be implemented by hundreds of federal judges nationwide. As Merrill observes, “[i]t does not take a crystal ball to predict that” Loper Bright’s instruction “will cause legal disagreement to proliferate”151 as lower courts reach conflicting conclusions about statutory meaning and agency authority.152 That fragmentation will engender the same kinds of reliance and rule-of-law critiques that beset Chevron, unless the Court is able to introduce greater order into the analysis and do a better job of policing lower-court decisionmaking — perhaps by “dramatically expand[ing] its caseload.”153
Second, the Court must ensure Loper Bright is applied fairly. Just as Chevron came to be criticized for unduly favoring government agencies, Loper Bright risks being used — at least in some judges’ hands — as an automatic trump card for those challenging agency action. Yet the federal government, too, is entitled to a fair shake in federal courts. A just regime must allow agencies to prevail when they have the better reading of the statute. And the same framework should apply regardless of whether agencies seek to regulate or deregulate, for either regulation or deregulation may logically fall within or without the scope of power that Congress has delegated to an agency. This would actually represent an improvement over the recent post-quartet state of affairs, in which the new major questions doctrine had created an asymmetric landscape that made it harder to take new and major regulatory action but imposed frail constraints on major agency action that deregulated.154
Finally, the Court should absorb the lesson that the political legitimacy of a framework matters a great deal. Chevron’s downfall was hastened by sustained conservative opposition that portrayed it as too deferential to unaccountable agencies. That criticism did not emerge in the immediate aftermath of Chevron, but instead coalesced many years on.155 Similarly, over the long term if not immediately, Loper Bright will face the mirror-image risk: criticism from the left as a judicial power grab that illegitimately constrains congressional authority and democratic governance. That criticism will gain force if Loper Bright comes to be applied selectively, in a politically asymmetric fashion — that is to say, in a manner that sustains broad regulatory power when it is wielded by one political party but that routinely strikes it down in the hands of the other. Not much can usefully be said on this score: whether political opposition to Loper Bright ultimately takes root will depend on whether the Court decides to implement the Loper Bright framework responsibly and in an even-handed manner across administrations — or whether it chooses to simply let it be an illegitimate power grab.
Conclusion
Many feel about judicial deference to administrative agencies the way that Mark Twain felt about whiskey — that too much is barely enough. Loper Bright will certainly not slake that thirst. But the Loper Bright bottle may yet be half full. Loper Bright contains significant ambivalences that could allow it to preserve much of agencies’ interpretive authority. Those who hope to read Loper Bright as a complete rejection of agency authority misunderstand the decision. The Court did not mandate a wholesale rejection of agency authority; it created a new framework for evaluating that authority.
With a great debt to Merrill’s account of both Chevron’s “fall” and Loper Bright’s “rise,”156 this Response has argued that the lasting success of this new framework will depend on its workability, its fairness, and its long-term political legitimacy. These elements, in turn, implicate a constellation of interconnected issues: methodological choices about statutory interpretation; the scope and strength of the nondelegation doctrine; the capacity of courts to reach principled, consistent results across ideological and geographical lines; whether the framework produces systematic patterns of winners and losers; and whether and from whom political pushback emerges to the new framework. Much will depend on how Loper Bright interacts with this broader landscape of administrative law and political economy as it evolves to a new equilibrium.157
Managing these interlocking and shifting parts is no easy thing; each part affects and is affected by all the others. The gravity of this challenge makes the self-conscious nature of Loper Bright’s “regime change” all the more significant. In sharp contrast to the Court that decided Chevron,158 the Loper Bright Court had in full view the enormous stakes of the task it chose to undertake. And that fact saddles it with the moral obligation of ensuring that the Loper Bright regime resists succumbing to the fissures and pressures that ultimately sunk its ill-starred predecessor. If the Court can absorb the lessons of Chevron’s demise as it develops the Loper Bright framework, then Chevron’s most lasting legacy will be the wisdom it left us in its passage.
* Professor of Law and John A. Wilson Distinguished Faculty Scholar, Stanford Law School. For helpful feedback and conversations, I am grateful to Zach Clopton, Dan Deacon, Anuj Desai, Chris Egleson, Richard Fallon, Thomas Merrill, Anton Metlitsky, Hashim Mooppan, Anne Joseph O’Connell, Nate Persily, Steve Vladeck, Chris Walker, Adam Zimmerman, and to participants at the University of Michigan Public Law Colloquium. I am deeply indebted to Hana Ryan for her excellent research assistance and to the talented editors of the Harvard Law Review for their careful comments and suggestions.