Notice & Comment readers have, by now, gotten a range of views on the effect of Loper Bright Enterprises v. Raimondo on administrative agencies’ authority. One thing many agree on, though, is that only time will tell the decision’s true impact. Our organization, Governing for Impact, has released an issue brief offering guidance to policymakers on how to understand the post-Chevron world—and how to act boldly in the face of that uncertainty.

Some journalists and commentators have warned that Loper Bright is the death knell of the administrative state. We disagree with that bleak assessment. Yes, the Supreme Court’s general hostility to responsive administrative action is profound—and was on grim display this term. But Loper Bright is best understood as a formal recognition of a change that had already taken place, not a sea change.

That is because the choice for judges has not changed. In the years before Loper Bright, Chevron was not a genuine constraint on reviewing courts—it was effectively optional. Judges, with the Supreme Court’s encouragement, could avoid Chevron entirely by declaring a statute unambiguous on a particular question. Or they could sidestep deference by using one of the doctrine’s “refinements,” such as Chevron “step zero” or the major questions doctrine. Indeed, the facts on the ground prove the point: the Supreme Court stopped invoking Chevron, and, in Loper Bright’s telling, lower courts were increasingly avoiding it too.

On the flip side, judges inclined to defer won’t be stopped by Loper Bright. The decision acknowledges that courts must accept agencies’ reasonable views when Congress delegates interpretive authority to them. The Court even provides a roadmap for identifying such grants of discretion. Beyond that, Loper Bright makes clear that courts remain free to accept agencies’ legal positions and lists some circumstances in which agency interpretations carry “great weight” under the Skidmore doctrine.

In other words, under Chevron, courts could defer or not, more or less as they pleased—and they have essentially that same choice now.

Given that, our view is that the biggest threat posed by Loper Bright is the possibility that agencies will overread the decision and decide it isn’t worth pursuing important regulatory policies. That would turn fear over Chevron’s demise into a self-fulfilling prophecy. Aiming to avoid that outcome, we offer agencies guidance on the post-Chevron world—some of which relates to Loper Bright, but most of which reflects best practices that agencies, faced with general judicial hostility, have been developing for years.

We emphasize the importance of justifying rules early, often, and comprehensively. It’s been clear for some time that courts will require agencies to show their work and thoroughly address counterarguments. Loper Bright adds that agencies must show why their understanding of their authority reflects the best interpretation of the relevant statutes. But it also explains how agencies may identify statutory delegations of interpretive authority and, by following Skidmore, justify their legal position in ways courts are more likely to accept. Beyond that, we encourage agencies to locate their reasoning, when possible, in findings of fact and policy judgments—domains of agency decisionmaking where, as even Loper Bright acknowledges, agencies retain significant discretion.

We also examine the intersection of Skidmore and the major questions doctrine. Those doctrines favor longstanding and consistent agency positions over novel ones. We therefore recommend that agencies, whenever possible, analogize new rules to past action under a particular statutory authority and encourage them to exercise any new statutory authority as broadly as possible.

Finally, mindful that agencies must mitigate risk in the face of a hostile judiciary, we suggest the widespread use of severability clauses to maximize the possibility that if one provision of a rule is invalidated, the rest might survive.

In short, we aim to accomplish two goals. First, to lay out what Loper Bright does and does not change. Second, to remind agencies of best practice. Our hope is that this guidance will aid agencies in making the most of Loper Bright’s domain.

The issue brief can be found here. Jordan Ascher is a Policy Counsel at Governing for Impact. Will Dobbs-Allsopp is the Policy Director at Governing for Impact. Rachael Klarman is the Executive Director of Governing for Impact.