Loper Bright: Big Deal or Same as the Old Boss?

Authors

• John J. Vecchione
• Kara M. Rollins

Abstract

On June 28, 2024, forty years of judicial deference to an agency’s interpretation of silent or ambiguous statutes fell. The dethronement of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,¹ “a decaying husk with bold pretensions,” by Loper Bright Enterprises v. Raimondo² was heralded by the proclamation that “Chevron is overruled,” and its accompanying command that “[c]ourts must exercise their independent judgement in deciding whether an agency has acted within its statutory authority, as the [Administrative Procedure Act] requires.”³ The ruling was expected to upend the practice of administrative law. But more than a year after the decision, with Loper Bright and its companion case, Relentless Inc. v. U.S. Department of Commerce, still not adjudicated by any appellate court,⁴ and courts all over the country applying Loper Bright, has it been as transformative as its critics feared or as clarifying as its proponents hoped? Did the Court in Loper Bright leave too many avenues for continued adherence to a quasi-deference to the executive branch?

With respect to future administrative actions (and challenges thereto), the Loper Bright decision can be understood to provide four functional considerations for agencies and litigants alike. First, Loper Bright left Skidmore “respect” in place without clarifying how that standard is construed or applied.⁵ It also kept in place a preference for administrative positions that were long-held or from the inception of the animating legislation.⁶ Second, it approved the delegation of discretion by statute to the executive branch when clearly expressed.⁷ Third, it urged the lower courts not to overturn regulations already approved under Chevron deference, i.e., statutory stare decisis remains post-Loper Bright with respect to case holdings made under the Chevron framework.⁸ Fourth, it grounded its reasoning on the statutory language of the Administrative Procedure Act (APA).⁹

After Loper Bright, a host of questions remain, and new questions are arising: How long-standing does an agency’s interpretation have to be to get the respect the Court alluded to in Loper Bright? When does a court know Congress has given discretion on a subject to an agency? How much stare decisis do circuits apply to their old Chevron decisions? And, what happens when a court reviews administrative actions that fall outside of the APA’s review provisions?

Some commentators view Loper Bright as transformative,¹⁰ while others believe Chevron, whether called that or not, will always be with us.¹¹ This Article surveys key decisions citing Loper Bright in the little more than a year since it was decided to tentatively answer these questions and to argue that in many cases and areas Loper Bright has been decisive and is performing as its proponents hoped. But teaching the judiciary new tricks is difficult and some courts have attempted to move on as if little had happened.

Recommended Citation

Vecchione, John J. and Rollins, Kara M. (2026) "Loper Bright: Big Deal or Same as the Old Boss?," Liberty University Law Review: Vol. 20: Iss. 3, Article 2.
Available at: https://digitalcommons.liberty.edu/lu_law_review/vol20/iss3/2