When the Supreme Court overturned the Chevron doctrine in Loper Bright Enterprises v. Raimondo, it purported to leave intact the holdings of cases decided under Chevron. Chief Justice Roberts wrote that “we do not call into question prior cases that relied on the Chevron framework. The holdings of these cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology.” Lower courts are now grappling with what exactly this means. What constitutes the “holding” of a Chevron case, now entitled to stare decisis effect? In a couple recent decisions, the Sixth Circuit has adopted an exceptionally narrow understanding of Chevron stare decisis. While that approach has some merit as a conceptual matter, it seems unlikely that the Loper Bright Court intended such a destabilization of existing doctrine.

The Court’s statement that “we do not call into question prior cases that relied on the Chevron framework” could imply several possible visions of stare decisis. At the outset, it is worth noting that this statutory stare decisis question is only relevant to holdings at Chevron Step Two, where courts upheld an agency’s reasonable interpretation of an ambiguous statute it administers. Academic commentary has so far assumed that there are four possible approaches to Chevron stare decisis. Jonathan Remy Nash writes that one possibility is that stare decisis now “locks in” an agency to the particular interpretation that was previously upheld by a court. Arguing that it is unlikely that the Court intended that interpretation, he suggests three more plausible alternatives:

Stare decisis could (i) insulate the entire pre-Loper Bright decision by providing the agency access to the entire range of reasonably possible interpretations, (ii) provide the agency with the choice between the interpretation previously upheld as lawful and the best interpretation (i.e., the interpretation that Loper Bright would otherwise mandate), or (iii) allow the agency to choose any reasonable interpretation between the interpretation previously upheld as lawful and the best interpretation. 

These approaches all assume that Chevron stare decisis applies at the level of the particular statutory provision at issue in a prior case (affording stare decisis to the whole range of reasonable interpretations of that provision) or at the level of the particular legal interpretation at issue in a prior case.

So far, most lower courts read Loper Bright within these bounds. The Ninth Circuit, for instance, has taken the view that stare decisis preserves the legal interpretation held to be permissible in a prior circuit court decision. In Francisco Lopez Bartolo v. Garland, the petitioner challenged the BIA’s interpretation of what constitutes a “particularly serious crime” under 8 U.S.C. § 1231(b)(3)(B)(ii). The panel held that its prior decision in Ramirez-Ramos v. INS, which had upheld the BIA’s interpretation under Chevron, remained binding precedent even after Loper Bright. Similarly, in Lopez v. Garland, the court affirmed the continued vitality of pre-Loper Bright precedent interpreting the INA’s “single scheme” provision.

There is, however, another way to understand what the Court in Loper Bright might have meant: Stare decisis might instead apply to the particular agency action at issue in a prior Chevron case. In other words, a pre-Loper Bright decision finding the agency’s interpretation was reasonable would give stare decisis effect to the agency action that was upheld—the rule or order at issue—but would not have precedential force in challenges to subsequent agency actions that relied on the same statutory interpretation. That narrow interpretation would comport with the Court’s specific statement that it was preserving the “holdings of these cases that specific agency actions are lawful.” After all, the term “agency action” has a technical meaning under APA Section 551: “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.”

The Sixth Circuit has adopted this narrow interpretation of Chevron stare decisis in a series of recent opinions. It announced this view, for example, in its recent decision setting aside the Federal Communications Commission’s 2024 net neutrality order due to lack of statutory authority. There, the court considered whether it was bound by the Supreme Court’s decision in National Cable & Telecommunications Association v. Brand X Internet Services (2005), which had applied Chevron to uphold a 2002 FCC ruling that cable companies providing cable modem services offered an “information service” and thus could not be regulated as common carriers. The petitioners argued that Brand X expressly barred the 2024 FCC order at issue, which sought to apply common carrier regulation to internet service providers. But the Sixth Circuit held that Brand X did not compel the panel’s decision, because Loper Bright preserved only “‘specific agency actions’ that the Supreme Court has already found lawful.” Because the 2024 FCC order was a distinct “agency action” from the FCC’s 2002 ruling approved in Brand X, the panel reasoned that they were not bound by Brand X’s holding as a matter of statutory stare decisis.

The Sixth Circuit also appears to have adopted this agency-action-specific theory in its decision last summer in Tennessee v. Becerra. It claimed that “while Loper Bright opens the door to new challenges based on new agency actions interpreting statutes, it forecloses new challenges based on specific agency actions that were already resolved via Chevron deference analysis.” In that case, though, the panel majority and dissent disagreed about whether stare decisis extended to circuit court precedent or is limited to Supreme Court precedent alone.

In the context of rulemaking, this narrow interpretation of Chevron stare decisis would still ensure some stability, as it would effectively insulate existing regulations that were previously challenged and upheld at Step Two. But in the context of agency adjudication, this narrow interpretation would produce basically no stare decisis effect at all. The “specific agency action” at issue where a court deferred to an agency’s statutory interpretation announced in the course of adjudication was the ultimate judgment in that case—for instance, that a particular noncitizen is removable, or that a particular claimant is ineligible for disability benefits. Chevron stare decisis would prevent a renewed challenge to the agency’s particular order at issue in the prior case, but would provide no insulation where a new party sought to challenge the agency’s interpretation in a new case. As a result, the narrow view of Chevron stare decisis could unsettle areas of doctrine where agencies primarily make law through adjudication.

Despite this destabilizing effect, a different Sixth Circuit panel appears to have adopted the narrow interpretation of Chevron stare decisis in the immigration adjudication context. In Moctezuma-Reyes v. Garland, Judges Thapar and Murphy opted to chart their own course in interpreting the INA’s “exceptional and extremely unusual hardship” standard for cancellation of removal. In an opinion concurring in the judgment, Judge Stranch faulted the panel majority for disregarding the agency’s own “exceptional and extremely unusual hardship” test as set forth in the BIA decision In re Monreal-Aguinaga, which she noted had previously been enforced by the Supreme Court and regularly applied and enforced by the Sixth Circuit. Judge Stranch wrote that “[t]hese cases are authoritative precedent on the statutory meaning of ‘exceptional and extremely unusual hardship,’ and the Court in Loper Bright expressly disclaimed any intention to upend such precedent.” In response, Judge Thapar emphasized that “Loper Bright’s instruction” was that “[t]he holdings of … cases that specific agency actions are lawful” were what was subject to statutory stare decisis, concluding that “[o]ur Chevron-era precedents here remain standing.” While the reasoning is terse, it seems that only a narrow view of Chevron stare decisis can explain the panel majority’s refusal to decide the case based on Sixth Circuit precedent deferring to the BIA’s Monreal-Aguinaga test.

In sum, lower courts have adopted strikingly different understandings of the scope of Chevron stare decisis, with very different implications for how many long-settled regulations are now up for grabs.

* * *

Adjudicating between the competing interpretations of “Chevron stare decisis” depends on our understanding of the precise “holding” of a Chevron case where the agency prevailed at Step Two. Lawyers and judges do not always agree on—or are not always sure—what comprises the binding ratio decidendi of a judgment versus obiter dicta that will not count as law. But the standard formulation of the test, dating back to at least the eighteenth century, is that the ratio includes all of the reasoning necessary to the decision.

What, then, was the reasoning necessary to a decision upholding agency action at Step Two? In Brand X, the Court indicated that judicial decisions upholding agency action at Step Two identified those actions as based on a permissible construction of the statute. That is why, under Brand X, “[a] court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” To put it slightly differently, at Step Two a court was deciding the validity of an agency’s interpretation, not deciding the meaning of the statute.

But if the “holding” in the relevant Chevron Step Two cases was that the agency’s interpretation was permissible, that creates an obvious difficulty: Under Loper Bright, nothing now follows from that conclusion. Instead, Loper Bright says that a reviewing court must always adopt what they regard as “the best” interpretation of the law. It’s hard to see why a prior case holding that the agency’s legal interpretation was “permissible” would now bind a court to uphold new agency actions premised on that interpretation. So, too, with a Chevron­-era court’s recognition at Step One that a statute was ambiguous. Even if that finding was precedential, “ambiguity” is no longer a concept that bears consequences for how “agency cases” ought to be decided. In short, it’s hard to reconcile a broad reading of Chevron stare decisis with our traditional understanding of how statutory stare decisis operates. Abandoning Chevron is different from other changes in interpretive methodology, because Chevron shaped the questions that a court was deciding—not just the reasoning it used to answer those questions.

Perhaps the recognition of this conceptual difficulty is why the Court specified that the “holding” of prior Chevron cases was “that specific agency actions are lawful”—an unusually narrow way to describe the holding of a case.  At the very least, the Loper Bright majority might have thought, one part of the reasoning necessary to a Chevron Step Two case was that the agency action at issue could be upheld against a challenge that it exceeded the agency’s statutory authority.

But that reading of Loper Bright produces a very limited form of stare decisis, insulating only the specific regulatory actions that were upheld in a prior case. And, as discussed above, it would produce essentially no stare decisis effect in areas dominated by agency adjudication—including immigration. That would have a profound impact in the Courts of Appeals, where appeals from Board of Immigration Appeals decisions are the largest category of administrative agency appeals in every circuit except the D.C. Circuit. That raises an obvious question: could the Loper Bright majority have intended such a destabilizing result? Surely the purpose of including the stare decisis passage was to minimize the disruption caused by Chevron’s overruling.

Moreover, while the Sixth Circuit has focused on Loper Bright’s “specific agency action” language, it has ignored other language in the opinion that is harder to reconcile with its narrow interpretation—namely, the Court’s statement that “the Clean Air Act holding of Chevron itself” is subject to statutory stare decisis. Under the Sixth Circuit’s view, shouldn’t the Loper Bright majority have described the holding of Chevron in terms of the agency action at issue (EPA’s 1981 regulation) rather than the Clean Air Act? 

If lower courts are already split on the proper scope of Chevron stare decisis, perhaps the Court will eventually have to clarify what it meant in that passage. Until then—and at the risk of reading Supreme Court tea leaves a little too finely—there may be some hints as to the Court’s view in the pattern of cases in which it has granted certiorari, vacated the decision below, and remanded (or GVR’d) with instructions to reconsider the decision in light of Loper Bright. The Court will typically grant an order of this sort when it wants to give a lower court the opportunity to consider the impact of a new development (such as a recently issued Supreme Court decision) and to potentially revise its ruling accordingly. As you might expect, the Court has GVR’d cases where the lower court relied solely on Chevron deference. But, in at least two cases (Debique v. Garland and Kerr v. Garland) it has declined to GVR where the lower courts relied on circuit precedent that, in turn, relied on Chevron deference to review a distinct “agency action.” Recently, in Nivar Santana v. Garland, the Court GVR’d a decision where the Fourth Circuit had relied both directly on Chevron and on circuit precedent that applied Chevron in a separate “agency action.” In Nivar Santana, though, the petitioners had argued that the relevant portion of this circuit precedent was dicta. All of these GVR orders and denials are unreasoned, so it’s not clear what theory—if any—undergirded the Court’s decision-making. It suggests, though, that the Supreme Court may have a broader understanding of Chevron stare decisis than the Sixth Circuit does.

Elliot Setzer is a 3L at Stanford Law School and a Ph.D. student in Political Science at Yale, where he works on bureaucratic politics and the history of the administrative state.