WAS LOPER BRIGHT A PAPER TIGER?

The Supreme Court’s 2024 Loper Bright decision overturned the longstanding Chevron doctrine which required courts to generally defer to administrative agencies’ interpretations of statutes, holding instead that courts would determine for themselves the best interpretation unless a statute explicitly granted that authority to the agency. This seemed to portend a new balance of power where agencies would be challenged at every opportunity leading to a deluge of litigation, reticence to promulgate new regulation and regulatory uncertainty. As Loper Bright approaches its second anniversary, were these expectations justified?

Initially it seemed they were. In the two months following its release, federal courts of appeal cited Loper Bright 26 times while striking four regulations, halting 15 others, and denying three agency requests to pause litigation. However, the situation may have stabilized; earlier this year the Department of Justice’s Civil Division, Tax Litigation branch reported that agency win rates in court held steady at roughly 60%, similarly to before Loper Bright. This suggests that while agencies are not enjoying unfettered deference, they are not being reflexively overruled.

Before Chevron federal courts applied the Supreme Court’s 1944 Skidmore decision, deferring where they found agency interpretations “persuasive,” a frustratingly amorphous standard. Many wonder if Loper Bright resurrected Skidmore. While it hasn’t explicitly said so, the Supreme Court seemed to head in that direction in its VanDerStok and Braidwood decisions (confirming ATF’s regulation of ghost guns and HHS’s authority to appoint members of a task force respectively) upholding agency positions consistent with past practice to which Congress had not objected. Post-Loper Bright several lower courts have approvingly cited Skidmore, perhaps because it provides a rationale for courts to avoid acting as super-regulators where agencies have specialized expertise (one of the objectives of Chevron and one of the potential pitfalls of Loper Bright). The reemergence of Skidmore suggests courts will not closely scrutinize every agency position, but when they do the outcome may be more subjective, complex and hard to predict.

Courts seem to have invoked Loper Bright particularly when considering highly sensitive agency actions as opposed to workaday technical ones (where they may be more inclined to apply Skidmore). For example, Loper Bright was cited when courts considered the U.S. Department of Education’s Biden-era definition of sex discrimination under Title IX (including reference to sexual stereotypes, gender identity, and sexual orientation), the FCC’s extension of National Registry protections to cell phones, and in habeas petitions challenging the U.S. Attorney General’s and Bureau of Prisons’ implementation of the First Step Act.

If fear of Loper Bright challenges is deterring federal agencies from issuing regulations and guidance they have not said so openly. Commentators note, however, that agencies appear to be laying the groundwork to survive challenges by taking more care to justify their regulations in preambles, demonstrate compliance with notice and comment requirements and emphasize any available statutory delegation of authority. Some agencies have also undertaken reviews of existing regulations. It is hard, however, to gauge Loper Bright’s influence on such efforts given the Trump administration’s preference for deregulation.

STATE COURTS TAKING NOTICE

Though Loper Bright applies to federal agencies, being an important precedent, state courts have taken notice of it. However, its state-level impact is also hard to assess since each state approaches deference in its own way. State courts that embraced Chevron may still do so despite it being overruled at the federal level until their state legislature or state Supreme Court weigh in, as Indiana’s legislature has done. The Vermont Supreme Court declined its first opportunity to decide whether Chevron still applies while the Hawaii Supreme Court emphatically refused to follow Loper Bright.

Loper Bright cannot be understood in a vacuum. The Supreme Court’s prohibition on lower court national injunctions in the Casa case reduces litigation stakes for agencies and potential rewards for private litigants which could embolden an agency to regulate aggressively. Courts can look to other tools, like Skidmore and the major questions doctrine, as aids or alternatives to applying Loper Bright. And as the federal regulatory agenda becomes ever more driven by executive orders and tweets, the extent to which courts will be accommodating or suspicious of agencies could be fluid.

Loper Bright jurisprudence is still young. While to-date it has proven to be important it has not (yet) changed the regulatory landscape as radically as some expected. Agencies continue to regulate (where directed by the administration) and courts generally continue to defer to them (though not as presumptively as under Chevron), invoking Loper Bright when they believe agencies have overstepped.