When the Supreme Court throws out the most cited case in your field, initial reactions may range from despair to elation—strong feelings related to the merits and consequences of the decision—to a more pedestrian variety of consternation: I have to re-write my casebook!  As concerns Chevron’s demise, the shift in case-law at the very least warrants the latter form of administrative angst, if you’ll forgive the pun, but not to such an extreme.  Sure, Chevron is “bad law,” the red flag of Westlaw ominously marking its grave.  Yet, at least for purposes of studying administrative law, it should remain canon.  Why?  Although the Supreme Court’s decision in Loper Bright alters the deference landscape in important ways—giving courts power at the expense of agencies—these changes may not be as profound as a surface-level inspection suggests.  And even if they are, they cannot be appreciated unless juxtaposed with the Chevron era.   

Let’s begin by putting Loper Bright in context.  While possibly the most dramatic of the bunch, Loper Bright is only the latest in a series of decisions, stretching back over several years, that prosecute in both purpose and effect a trimming of the administrative state.  That’s not to diminish Loper Bright—the majority’s opinion cuts deep—but it’s not as if the ruling came out of nowhere.  The Chevron “step zero” and Major Questions Doctrine cases demonstrated the Court’s increased policing of Chevron’s domain (West Virginia v. EPA, for example, had all the trappings of a classic Chevron predicate), limiting the scenarios in which the Court was willing to construe statutory silence, ambiguity, or breadth as implying congressional authorization for agencies to fill in the gaps or crystalize terms with the force of law.  And if in hindsight Mead seems the gentlest of pushbacks on the scope of agency deference, it at least showcased the judiciary’s concern of conceding Chevron deference too willingly.   

While we’re zooming out, let’s not lose sight of what this is really all about, at the highest level: Negotiating authority to make law and “to say what the law is,” with all three constitutional branches having legitimate, albeit limited and contested, claims over those prerogatives.  Let’s dispense with the legal fiction that only Congress makes law as a matter of function and effect, that only the judiciary interprets law, and that the executive branch is limited to ministerially executing statutory mandates.  The three constitutional branches have always, and by design, taken actions that more neatly fall within another branch’s domain.  

Administrative law has been built, to a large degree, to provide guidelines around these incursions, however authorized they may be.  Chevron and all its progeny, even the patricidal Loper Bright, deal directly with this dynamic: To what extent does the executive branch, through agencies, have a say as to what statutes mean and how to make them work?  Congress has an obvious voice in all this, and so do courts.  That has always been the case and (one hopes) will remain so indefinitely.  The question is one of degree and apportionment.  Chevron offered one view; Loper Bright offers another.  

While Loper Bright vanquished the Chevron two-step, it did nothing to eliminate the central issues Chevron engaged.  Those issues—discerning the bounds of agency authority to promulgate regulations under statutes that are less than clear and then, if that authority exists, determining the weight to assign an agency’s posture—remain as live as ever.  Loper Bright changed the rules; it did not and could not change the need for analytical engagement with these questions. 

The controversial core of Chevron kicked in when “the statute [was] silent or ambiguous with respect to the specific issue” at hand.  Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984).  Under that triggering circumstance, courts were to defer to the agency’s interpretation—usually but not always as memorialized in a regulation—so long as the agency’s position was “based on a permissible construction of the statute.”  Id.  This approach flowed from “a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.” Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 740–741 (1996).  The Loper Bright Court deemed that presumption inconsistent with the Administrative Procedure Act, which commands courts to “decide all relevant questions of law” and “interpret . . . statutory provisions.” 5 U.S.C. § 706.

Under Loper Bright, the agency’s construction is not controlling, however “permissible” or “reasonable” it may be.  Instead, reviewing “courts must exercise independent judgment in determining the meaning of statutory provisions.”  Loper Bright Enterprises v. Raimondo, 603 U. S. ____, ___; Slip Op. at 16 (2024).  But does that mean that the agency’s regulatory interpretation is entitled to no more weight than the position of an ordinary, private litigant?  Not by a considerable margin.

Chevron stood for a host of principles that are not so easily interred.  These principles include the Executive’s constitutional authority and duty to execute legislation (i.e., to “take care that the laws be faithfully executed”) and, as a corollary, courts’ obligation to offer some degree of respect to an agency’s views on the meaning and best way to implement a law.  (Note that determining the meaning of a statutory term and how best to implement statutory language are related but distinct exercises.  The tendency to conflate these exercises—interpreting ambiguities versus filling gaps—was a problem under Chevron that will likely continue under Loper Bright.)  Based on several of the Court’s statements, Skidmore deference (or Skidmore “respect,” if you like), should loom even larger, occupying the space vacated by Chevron.  Citing Skidmore, the majority in Loper Bright wrote that “[c]ourts may—as they have from the start—seek aid from the interpretations of those responsible for implementing particular statutes.”  Slip Op. at 16.  While Skidmore deference has been characterized (sometimes tongue in cheek) as the feeble smaller brother of Chevron, this was never really accurate, and, taken up by government litigators as the only deference tool left in the shed, we can expect Skidmore to carry more of the load going forward.  And it’s capable of bearing a heavier burden than we appreciate.  Frankly, in many cases won by the government under Chevron, it doesn’t seem outlandish to imagine that the agency could have prevailed were Skidmore the only game in town.  

Separately, the Court acknowledged not only the existence of situations where Congress has expressly delegated “to an agency the authority to give meaning to a particular statutory term,” Slip. Op. at 17, but also scenarios wherein “the best reading of a statute is that it gives discretionary authority to an agency,” id. at 17-18 (emphasis added).  In other words, Loper Bright contemplates that Congress will, at times, implicitly authorize agencies to interpret or implement statutory terms with the force of law.  Under Loper Bright, it’s clear that mere statutory silence or ambiguity can no longer support a presumption of delegated discretionary authority.  But that does not eliminate all situations wherein “the best reading of a statute” implies as much.  As Daniel Walters recently opined, this could mean that “we continue to have the same fights, just under the banner of whether something qualifies as an explicit [or] implicit delegation of authority[,]” leaving “[p]lenty of room for lower courts to limit the impact of overturning Chevron by liberally construing the bounds of explicitness.”  

Still, this doesn’t obviously justify keeping Chevron, as such, in the casebooks. Doesn’t Loper Bright contain all the discussion of Chevron we need?  I don’t think so.  Even if we disagree with the holding of Loper Bright (and I do, at the very least on stare decisis grounds), appreciating its import requires understanding the waxing and waning of Chevron.  What exactly did Loper Bright overturn?  We have to read not only Chevron but a host of Chevron-associated cases to begin to form an answer.  None of this is to underplay Loper Bright: It’s a monumental decision, altering the landscape of administrative law as much as any decision in years.  That is precisely why we need to read what came before it.    

Nick Fromherz is an Adjunct Faculty of Law at Lewis & Clark Law School.