Is Loper Bright a Big Deal?

The Court's decision in Loper Bright v. Raimondo overruling Chevron marks a sea change in administrative law, but commentators have already disagreed about whether the decision is a big deal.  (For more on Loper Bright, see Mike's excellent blog post asking whether Congress could reinstate Chevron.)  A doctrinal about-face in a crucial area of law seems like a big deal, but what might be some reasons its importance is overstated?

 (For readers who don't usually follow administrative law, here's a very brief primer.  In its 1984 decision, Chevron v. NRDC, the Court announced a two-step test to determine whether courts should defer to administrative agency interpretations of statutes agencies administer.  Under step one, courts asked if the statute is clear.  If it was, then agencies were obliged to follow it; agencies didn't get any deference.  If the statute, by contrast, were ambiguous, then courts were to defer to reasonable agency interpretations.  In other words, agencies got no deference in Chevron step one and lots of deference in Chevron step two.)  

To begin, it's important to note that Loper Bright could have been a bigger deal.  Towards the end of his majority opinion, Chief Justice Roberts explains "we do not call into question prior cases that relied on the Chevron framework." In other words, while courts should not continue to apply the Chevron two-step test moving forward, past decisions using that approach will still be entitled to statutory stare decisis.  If the Court had ruled otherwise--or even if the Court had left that question open--much chaos would have ensued.  To that extent, Loper Bright changes much less than it might have.

Additionally, Loper Bright merely made official what the Court has already been doing anyway.  Anyone who follows administrative law knows that Chevron has been on the way out for a while.  As Chief Justice Roberts pointed out in his opinion, the Court hasn't deferred to an agency interpretation under Chevron since 2016.  On this view, Loper Bright functions more like a restatement, clarifying for everyone a change in administrative law that most professors and practitioners of administrative law already acknowledged.

A third and related point is that courts resolve a good number of Chevron cases at step one anyway.  Even when Chevron was more widely accepted, courts sometimes rejected agency actions on the grounds that the agency was not following a clear statute. (Justice Scalia's 1994 opinion in MCI Telecommunications v. AT&T would be one example of this approach.)  For its part, the federal government in recent years, recognizing that Chevron step-two deference was on the way out, has been increasingly advancing step-one arguments.  On this view, if even the federal government isn't relying on Chevron deference any more, then its official demise can't be that big a deal.

Fourth, as Chief Justice Roberts pointed out in his majority opinion, the Court through the decades constantly tinkered with Chevron, imposing various limitations on the doctrine. To give just one example, in Mead the Court held that Chevron only applies "when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority."  Given all the exceptions and caveats to Chevron, there were lots of agency cases where Chevron deference didn't apply. 

Fifth, and still relatedly, there's often a difference between what courts say and what they actually doEmpirical studies long contended that the Supreme Court applied deference to agencies on a sliding scale both before and after Chevron.  The Court's 1984 Chevron decision, then, didn't change a whole lot.  On this view, the substance of a challenged regulation may matter more than the doctrinal framework courts ostensibly apply to review it.  If it's right that Chevron didn't do much to alter courts' approaches to agencies' statutory interpretations, then perhaps Chevron's death won't change that much either. 

To these points, Ilya Somin has a recent thoughtful post listing a few other reasons why he's skeptical that Loper Bright will be too big a deal. The U.S., he reminds us, had a large and powerful administrative state long before the Chevron decision and will likely continue to even after Loper Bright.  States that have abolished their own versions of Chevron-deference don't have significantly weaker executive agencies.  Moreover, echoing some of the empirical findings I just referenced, Somin notes that informal judicial deference may well continue post-Loper Bright.  

Professor Somin is surely correct that Loper Bright doesn't demolish the administrative state, but the decision likely will make it easier for regulated industries to successfully challenge regulations they don't like.   Even if Loper Bright doesn't change much about how the Supreme Court has been going about its business for about a decade, it's likely to make a bigger difference in the lower courts, which sometimes continued to apply Chevron in recent years.  (Lower federal courts have discussed Chevron deference over 2,800 times in the past decade and nearly 1,400 times in the past five years.  It's hard to argue that a doctrine is irrelevant when lower federal courts are still engaging with it so frequently.)  When the Supreme Court gradually moves away from a doctrine, lower courts don't always get the memo.  When the Supreme Court officially announces that it's overruling an earlier decision, lower courts are much more likely to hear the message and follow it. 

More importantly, though, the attack on Chevron is hardly an isolated decision.  To the contrary, it's part of a larger assault on the administrative state.  The Roberts Court's major questions doctrine already permits courts to invalidate agencies' "major" policies where the agency is acting without specific Congressional authorization.  Given that Congress through the decades has often delegated broad (but non-specific) authority to administrative agencies, this doctrine gives broad license to courts to strike down lots of policies they consider sufficiently important.  The Supreme Court has already done so in cases related to climate change, COVID vaccines, student loan forgiveness, and more. In a separate line of cases, the Court has also undermined independent agencies on the theory that they are too insulated from presidential control.  Even some of this week's other decisions threaten agency regulation.  SEC v. Jarkesy, though decided on Seventh Amendment grounds, could imperil enforcement actions that the SEC and other agencies have long taken for granted.  Ohio v. EPA second guessed agency policy based on procedural grounds so flimsy that Justice Barrett, who was in the majority in these other cases in which she participated, strongly dissented. 

Loper Bright, then, is one of many cases in which the Roberts Court has weakened administrative agencies. That point is important--and not just because it helps situate Loper Bright as part of a broader judicial project. It's also important because it sheds light on how the Court will approach a new post-Chevron world. It is true that even during Chevron's heyday, courts didn't always apply Chevron deference as the doctrine would have seemed to instruct. But if anyone today thinks that judicial review of administrative agencies will proceed, more or less, as it always has, take a look at the Court's other moves in the administrative law sphere.  The major questions doctrine cases already teach us that even where Congress has delegated broad authority to an agency, the Court still sometimes says that that's not good enough.  Given this Court's hostility to administrative regulations, it seems likely that a good number of agency actions that would have survived Chevron review will now fail under Loper Bright

Loper Bright is best understood in this larger context.  It is part of a concerted judicial project to weaken the administrative state specifically and the federal government's ability to address serious problems more generally.  It is true that the law isn't that different than it was a few days ago because the Supreme Court hadn't been following Chevron anyway.  It's also true that nothing in the Chief Justice's opinion is terribly surprising.  But if we compare administrative law to where it was, say, at the start of the Roberts Court, the changes are massive.