Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law
Congressional research reportDec 31, 2024
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Loper Bright Enterprises v. Raimondo and the
Future of Agency Interpretations of Law
December 31, 2024
Congressional Research Service
https://crsreports.congress.gov
R48320
SUMMARY
Loper Bright Enterprises v. Raimondo and the
Future of Agency Interpretations of Law
“Chevron is overruled”: On June 28, 2024, the Supreme Court overruled the Chevron framework
in Loper Bright Enterprises v. Raimondo, holding that the Chevron framework violated Section
706 of the Administrative Procedure Act (APA). The Chevron framework required courts to
defer to reasonable agency interpretations of ambiguous statutes. In its place, the Court directed
the judiciary to exercise its independent judgment to determine the meaning of federal statutes.
R48320
December 31, 2024
Benjamin M. Barczewski
Legislative Attorney
The Chevron framework was named for the case that articulated it, Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc. For four decades, the Chevron case, and the framework that grew out of it, was one of the foundational
decisions in administrative law, governing the relationship between agencies and courts in matters of statutory interpretation
and acting as a backdrop against which Congress has legislated. The Chevron framework typically applied if Congress had
given an agency the general authority to make rules with the force of law. If a court determined that Chevron governed its
analysis, at step one it would determine whether Congress directly addressed the precise issue before the court. If the statute
was clear on its face with respect to the issue before the court, the court was to implement Congress’s stated intent. If the
court concluded instead that a statute was silent or ambiguous with respect to the specific issue, the court then proceeded to
Chevron’s second step. At step two, courts were required to defer to an agency’s reasonable interpretation of the statute
regardless of whether the court would adopt that interpretation on its own were it to have reviewed the statute without the
benefit of the agency’s interpretation. The Chevron framework rested on several related assumptions, including that
(1) statutory ambiguity indicates a congressional delegation of interpretive authority, (2) agencies have more expertise than
courts do to interpret the statutes they administer, and (3) agencies are politically accountable and therefore have more claim
to make policy than courts do.
The APA’s Section 706, the Court held in Loper, codified existing judicial review practice at the time of its enactment in
1946. Recounting a long line of cases going back to the beginning of the 19th century, the Court explained that the federal
courts always understood their role as the final arbiters of the meaning of statutes. Given this history, the Court took specific
aim at Chevron’s first presumption—that statutory ambiguities indicate implicit delegation of interpretive authority to an
agency. This presumption, the Court held, violated the APA’s “unremarkable yet elemental proposition … that courts decide
legal questions by applying their own judgment.” Despite the Court’s direction that courts are obligated to exercise their
independent legal judgment, the Court emphasized several times that the executive branch’s views on the meaning of a
statute should be given “weight” or “respect” under certain circumstances outlined by the 1944 Supreme Court case Skidmore
v. Swift & Co. The Court’s emphasis on the judiciary’s role to render independent legal judgment on the best meaning of a
statute, moreover, does not preclude a court from concluding that a particular statute has vested the agency with discretion.
Where Congress has vested an agency with delegated authority, courts must still ensure that the agency has stayed within
“the boundaries of the delegated authority and … the agency has engaged in ‘reasoned decisionmaking’ within those
boundaries.”
Exactly how Congress, the executive branch, and the judiciary will react to the Loper decision is still an open question. In
broad terms, Loper will likely have a much greater effect in the lower courts than at the Supreme Court, as the Supreme
Court did not defer to an agency interpretation under Chevron since 2016. The lower courts, however, relied on the
framework until the day Chevron was overruled. Whether agencies will lose more cases before the courts is another open
question. Some evidence of the effect of Chevron on the lower courts indicates that overruling Chevron may depress agency
successes in the lower courts where an agency interpretation of law is at issue. Nonetheless, in the absence of Chevron, courts
may rely more heavily on Skidmore weight or find more readily that statutes delegate authority to agencies, thereby limiting
agency losses in court. Further, Chevron did not apply to all agency actions—only to agency interpretations of statutes.
Exercises of statutorily delegated policy discretion are (and will continue to be) reviewed under the APA’s deferential
arbitrary and capricious standard.
The extent to which Loper will affect the way agencies regulate and Congress legislates is yet to be seen. The Loper decision
does not legally bind the executive branch or Congress—it directs courts how to resolve cases of statutory interpretation.
Loper will likely have an indirect effect on each branch, however. Agencies may respond to Loper by drafting their
interpretations to better mirror the way courts interpret statutes and limit expansive interpretations of the statutes they
administer. Congress may respond by drafting more specific statutes, codifying Chevron or Loper, or using more express
delegations in statutes.
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Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law
Contents
Introduction ..................................................................................................................................... 1
The Chevron Framework ................................................................................................................. 2
The Loper Decision ......................................................................................................................... 2
Judicial Practice Before Enactment of the APA ........................................................................ 3
The APA and Chevron’s Presumptions...................................................................................... 4
Statutory Interpretation Under Loper ........................................................................................ 5
Application of the Skidmore Standard ................................................................................ 6
Delegations to Agencies and Statutory Interpretation......................................................... 6
Stare Decisis and Cases Decided at Chevron Step Two ............................................................ 8
The Dissent ...................................................................................................................................... 8
Implications for the Federal Judiciary ............................................................................................. 9
The Supreme Court ................................................................................................................. 10
The Lower Courts .................................................................................................................... 11
The De Novo Standard of Review, Methods of Statutory Interpretation, and Statutory
Ambiguity ............................................................................................................................ 13
Methods of Statutory Interpretation .................................................................................. 14
Statutory Ambiguity .......................................................................................................... 17
Skidmore Weight ..................................................................................................................... 20
Analyses of Skidmore Pre-Loper ...................................................................................... 22
Post-Loper Applications of Skidmore ............................................................................... 24
Delegations from Congress ..................................................................................................... 25
Policy Discretion, Mixed Questions of Law and Fact, and Arbitrary and Capricious
Review ................................................................................................................................. 27
Relationship with other Doctrines of Judicial Review ............................................................ 30
Major Questions Doctrine ................................................................................................. 30
Auer (Kisor) Deference ..................................................................................................... 33
Further Litigation: Prior Chevron Cases ................................................................................. 35
The Process of Relitigating Prior Chevron Cases ............................................................. 37
Tennessee v. Becerra: Stare Decisis and Loper Applied ................................................... 40
Interactions with Corner Post, Inc. v. Board of Governors of the Federal Reserve
System............................................................................................................................ 41
Implications for Executive Branch Agencies ................................................................................ 42
Considerations for Congress.......................................................................................................... 45
Legislative Productivity .......................................................................................................... 45
Legislative Specificity ............................................................................................................. 46
Codifying Chevron or Loper ................................................................................................... 47
Delegations to Agencies .......................................................................................................... 49
Figures
Figure 1. Geographic Boundaries of the Federal Courts ............................................................... 38
Figure 2. Hierarchy of the Federal Court System.......................................................................... 39
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Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law
Contacts
Author Information........................................................................................................................ 49
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Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law
Introduction
On June 28, 2024, the Supreme Court overruled the Chevron framework in a pair of cases, Loper
Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce (collectively
Loper).1 The Chevron framework—named for the case that articulated it, Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc.—required federal courts to defer to federal agencies’
reasonable interpretations of ambiguous statutory provisions the agencies administer.2
For four decades, the Chevron case, and the framework that grew out of it, has been one of the
foundational decisions in administrative law, governing the relationship between agencies and
courts in matters of statutory interpretation and acting as a backdrop against which Congress has
legislated. As one legal scholar put it: Chevron “is the most talked about, most written about,
most cited administrative law decision of the Supreme Court. Ever.”3 For the past decade or so,
however, Chevron had come under increasing fire from some corners of the federal judiciary and
legal academia.4 Once cited often and approvingly by a majority of Supreme Court Justices,
Chevron fell into desuetude at the Court.5 Over the past several terms, the Court has declined to
apply or even cite Chevron in cases where it may once have governed.6 Other methods of
statutory interpretation, such as the major questions doctrine, appear to have displaced Chevron,
at least in some instances.7 Chevron’s absence at the Court has not gone unnoticed, with several
Justices commenting on Chevron’s absence as evidence that it should be overruled.8
Against this backdrop, the Court explicitly overruled the Chevron framework, holding that it
violates Section 706 of the Administrative Procedure Act (APA).9 For cases that fall within the
ambit of the APA, Section 706 requires courts reviewing agency actions to “decide all relevant
questions of law, interpret constitutional and statutory provisions, and determine the meaning or
applicability of the terms of an agency action.”10 The majority held that the APA’s command
required courts to exercise their own independent judgment on the meaning of federal statutes,
but Chevron required courts to defer to reasonable agency interpretations of ambiguous statutes.11
That deference requirement, the Court held, abdicated the judiciary’s foundational function to
1 144 S. Ct. 2244 (2024).
2 467 U.S. 837, 843 (1984), overruled by Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024).
3 Ronald A. Cass, Chevron—Complicated, Start to Finish, 23 FEDERALIST SOC’Y REV. 265, 265 (2022).
4 See Pereira v. Sessions, 585 U.S. 198, 221 (2018) (Alito, J., dissenting) (writing that Chevron is now an “increasingly
maligned precedent” that the Court feels comfortable “simply ignoring”); Buffington v. McDonough, 143 S. Ct. 14, 22
(2022) (Gorsuch, J., dissenting from denial of certiorari) (arguing that that Chevron “deserves a tombstone no one can
miss.”). Prior to being appointed to the Supreme Court, Justice Kavanaugh raised concerns that Chevron was
conceptually muddled, while Chief Justice Roberts had suggested that Chevron should be significantly narrowed. See
Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 HARV. L. REV. 2118, 2136 (2016); City of Arlington v. FCC,
569 U.S. 290, 323–27 (2013) (Roberts, C.J., dissenting) (advancing a narrower theory of Chevron). For a survey of
academic literature criticizing Chevron deference, see Christopher J. Walker, Attacking Auer and Chevron: A
Literature Review, 16 GEO. J.L. & PUB. POL. 103 (2018).
5 See Kristin E. Hickman & Aaron L. Nielson, Narrowing Chevron’s Domain, 70 DUKE L. J. 931, 1000 (2021).
6 See Loper, 144 S. Ct. at 2271 (stating that the Court has not deferred under Chevron since 2016).
7 See Buffington, 143 S. Ct. at 22 (Gorsuch, J., dissenting from denial of certiorari); CRS Legal Sidebar LSB11084,
Clear Statement Rules, Textualism, and the Administrative State, by Benjamin M. Barczewski and Valerie C. Brannon
(2023); CRS In Focus IF12077, The Major Questions Doctrine, by Kate R. Bowers (2022).
8 See, e.g., Buffington, 143 S. Ct. at 22 (Gorsuch, J., dissenting from denial of certiorari); Pereira v. Sessions, 585 U.S.
198, 221–22 (2018) (Alito, J., dissenting).
9 Loper, 144 S. Ct. at 2263.
10 5 U.S.C. § 706(2).
11 Loper, 144 S. Ct. at 2266.
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“say what the law is.”12 Although the petitioners in Loper also challenged the Chevron framework
on constitutional grounds, the majority’s opinion did not address those arguments.13
The Chevron Framework
The Chevron framework required a court to defer to an executive agency’s interpretation of an
ambiguous statute that it administers so long as the agency’s interpretation was reasonable.14 The
framework’s namesake 1984 Supreme Court case, Chevron U.S.A. v. Natural Resources Defense
Council, set out a two-step process for determining whether a court must defer to an agency’s
statutory interpretation.15
The Chevron framework typically applied if Congress had given an agency the general authority
to make rules with the force of law.16 If a court determined that Chevron applied, at step one it
would use the traditional tools of statutory construction to determine whether Congress directly
addressed the precise issue before the court.17 If the statute was clear on its face with respect to
the issue before the court, the court was to implement Congress’s stated intent.18 If the court
concluded instead that a statute was silent or ambiguous with respect to the specific issue, the
court then proceeded to Chevron’s second step.19 At step two, a court was required to defer to an
agency’s reasonable interpretation of the statute regardless of whether the court would adopt that
interpretation on its own were it to have reviewed the statute without the benefit of an agency’s
interpretation.20 The Chevron framework rested on several related assumptions, including that
(1) statutory ambiguity indicates a congressional delegation of interpretive authority, (2) agencies
have more expertise than courts do to interpret the statutes they administer, and (3) agencies are
politically accountable and therefore have more claim to make policy than courts do.21
The Loper Decision
The Supreme Court’s decision to overrule the Chevron framework relied exclusively on Section
706 of the APA. The APA generally governs judicial review of agency actions.22 Section 706 of
the APA states “the reviewing court shall decide all relevant questions of law.”23
12 Id. at 2257 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).
13 Brief for Petitioners at 24, Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024) (No. 22-451).
14 See Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).
15 Id.
16 See United States v. Mead Corp., 533 U.S. 218, 226–27 (2001).
17 Chevron, 467 U.S. at 843 n.9.
18 Id.
19 Id. at 843.
20 Id. at 844–45, 865–66.
21 Id. Justice Scalia later expressed another justification for Chevron deference, rooted in the history of federal court
review of agency action before passage of the federal question jurisdiction statute in 1875. See United States v. Mead
Corp., 533 U.S. 218, 241–42 (2001) (Scalia, J., concurring) (asserting that the Chevron decision “was in accord with
the origins of federal-court judicial review,” because a court would issue “the prerogative writ of mandamus” only if
the executive officer “was acting plainly beyond the scope of his authority.”).
22 5 U.S.C. §§ 701–706.
23 Id. § 706.
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Judicial Practice Before Enactment of the APA
Section 706, the Supreme Court held, codified existing judicial review practice at the time of its
enactment in 1946.24 Recounting a long line of cases going back to the beginning of the 19th
century, the Court explained that the federal courts always understood their role to be the final
arbiters of the meaning of statutes.25 The Court began by quoting the now famous statement from
the seminal 1803 case Marbury v. Madison that “it is emphatically the province and duty of the
judicial department to say what the law is.”26 Although Marbury embodied the “Framers’
understanding” of the role of the federal judiciary, the judiciary also historically “accorded due
respect” to the views of the executive branch entrusted with administering a statute.27 That respect
was “especially warranted” where the executive branch’s interpretation was roughly
contemporaneous with the enactment of the statute.28 Agency interpretations that warranted
judicial respect, however, “could inform … but did not supersede” the judgment of a court on a
question of law.29
The Court acknowledged that it appeared that some cases decided before the enactment of the
APA had applied various deference doctrines. Those cases, however, as understood by the Court,
did not shift the foundational role of the courts, nor did they apply anything like the deference
required under Chevron.30 In a pair of pre-APA cases from the 1940s, National Labor Relations
Board (NLRB) v. Hearst Publications, Inc.31 and Gray v. Powell,32 the Court applied what the
Loper majority called “deferential review”—but only insofar as Congress had empowered the
agency to determine the meaning of the statute.33 In Hearst Publications, for example, the Court
deferred to the NLRB’s determination that newsboys were “employees” within the meaning of
the National Labor Relations Act.34 Deeming the newsboys (who were actually adult men)
“employees” provided them the opportunity to engage in collective bargaining with their
employer, Hearst Publications.35 The Court concluded that the task of defining employee was
“assigned primarily to the agency created by Congress to administer the Act.”36 The NLRB, the
Court held, had “[e]veryday experience in administering the statute” and “familiarity with the
circumstances and backgrounds of employment relationships in various industries.”37
24 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2261 (2024).
25 Id. at 2257–60.
26 Id. at 2257 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).
27 Id. The Court cited another of its early nineteenth-century cases, Edwards’ Lessee v. Darby, for the proposition that
from the very beginning of the Republic, courts accorded contemporaneous executive branch interpretations of
“doubtful and ambiguous law ... very great respect.” 25 U.S. (12 Wheat.) 206, 210 (1827) (“In the construction of a
doubtful and ambiguous law, the cotemporaneous [sic] construction of those who were called upon to act under the
law, and were appointed to carry its provisions into effect, is entitled to very great respect.”)
28 Loper, 144 S. Ct. at 2258.
29 Id.
30
Id. at 2259.
31 322 U.S. 111 (1944).
32 314 U.S. 402 (1941).
33 Loper, 144 S. Ct. at 2259.
34 Hearst Publications, 322 U.S. at 129–30.
35 Id. at 113–14.
36 Id. at 130.
37 Id. “In making [the NLRB’s] determinations as to the facts in these matters conclusive, if supported by evidence,
Congress entrusted to it primarily the decision whether the evidence establishes the material facts. Hence in reviewing
(continued...)
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Gray was decided under similar circumstances. In that case, the Supreme Court found that
Congress had “specifically granted the agency the authority to” determine whether a coal-burning
railroad with contracts with several coal mines was a coal “producer” pursuant to the Bituminous
Coal Act of 1937. The Gray Court held “[w]here as here a determination has been left to an
administrative body, this delegation will be respected and the administrative conclusion left
untouched.”38
The Loper majority reasoned that Hearst Publications and Gray are examples of deferential
review “where application of a statutory term was sufficiently intertwined with the agency’s
factfinding” rather than evidence that the Court had adopted generally applicable Chevron-like
deference doctrines prior to the enactment of the APA.39 Gray and Hearst Publications, in the
Court’s reasoning, were examples of an adjudication-like action of applying a statutory term to
the particular facts before it.40 As a result, these cases, according to the Court, did not depart from
the general rule at the time of the enactment of the APA that pure questions of law were to be
answered by the courts—not agencies.41
The APA and Chevron’s Presumptions
Given this history, the Supreme Court took specific aim at Chevron’s first presumption—that
statutory ambiguities indicate implicit delegation of interpretive authority to an agency.42 This
presumption, the Court held, violated the APA’s “unremarkable, yet elemental proposition …
dating back to Marbury: that courts decide legal questions by applying their own judgment.”43
The majority explained that presumptions can be salutary but only where they approximate
reality.44 Chevron’s presumption, the Court explained, does not approximate reality, “because
‘[a]n ambiguity is simply not a delegation of law-interpreting power. Chevron confuses the
two.’”45 Instead, the Court held that, when confronted with a statutory ambiguity, a court should
not defer to an agency’s interpretation but instead should do its “ordinary job of interpreting
statutes, with due respect for the views of the Executive Branch.”46
the Board’s ultimate conclusions, it is not the court’s function to substitute its own inferences of fact for the Board’s,
when the latter have support in the record.” Id. (citing NLRB v. Nev. Consol. Copper Corp. 316 U.S. 105 (1942)).
38 Gray v. Powell, 314 U.S. 402, 412 (1941).
39 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2260 (2024).
40 See id. at 2259–60.
41 Id. In The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State, Professor Thomas Merrill
notes that one way to read Hearst Publications and similar cases is that the Court engaged in deferential review where
the agency was engaged in applying the law to the facts before it (e.g., is a particular entity covered by a statutory
term?)—not pure legal analysis. THOMAS W. MERRILL, THE CHEVRON DOCTRINE: ITS RISE AND FALL, AND THE FUTURE
OF THE ADMINISTRATIVE STATE 39 (2022) [hereinafter THE CHEVRON DOCTRINE]. This view aligns squarely with the
majority in Loper. 144 S. Ct. at 2259 (calling the agency actions in Hearst Publications and Gray “factbound”). If that
is what in fact the Court was doing in Hearst Publications and Gray, then those cases do not necessarily stand for the
proposition that the Court was engaged in something like a proto-Chevron analysis prior to the enactment of the APA.
Nonetheless, Professor Merrill explains that Hearst Publications can also be understood to be an early instantiation of
one of Chevron’s core assumptions—that ambiguities are implicit delegations of interpretive authority. THE CHEVRON
DOCTRINE 39-40.
42 Loper, 144 S. Ct. at 2265.
43 Id. at 2261.
44 Id. at 2265.
45 Id. (quoting Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405, 445 (1989)).
46 Id. at 2267.
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By sweeping away one of Chevron’s core assumptions about delegation, the majority declared
that ambiguities in statutes pose questions of law, not questions of policy.47 In holding that the
judiciary, not agencies, is to resolve statutory ambiguities, the majority explained that the Framers
understood “the complexity of objects … the imperfection of the human faculties, and the simple
fact that no language is so copious as to supply words and phrases for every complex idea,” yet
they still expected politically insulated judges to exercise independent legal judgment in resolving
statutory ambiguities.48
Statutory Interpretation Under Loper
While the Supreme Court acknowledged that ambiguities in statutes surely exist, the majority
held that a statute’s meaning was fixed at the time of enactment, permitting one and only one
interpretation of the statute.49 The majority reasoned that poorly drafted, complex, or technical
statutes are no different than statutes with clear or obvious meanings—they both have meanings
fixed at the time of enactment that a court is obligated to give effect to.50 According to the
majority, a court’s job is to find this single “best” meaning by applying the “traditional tools of
statutory construction.”51 Courts apply these tools to resolve any potential ambiguity so that the
law does not “run out” or leave a “gap” for agencies to fill.52 The Court itself did not list which
tools it believes are included in the traditional tools of statutory construction.53 Methods of
statutory interpretation and how Loper may interact with them will be discussed in more detail
below.54
Regardless of the methods a court uses to interpret a statute, the Court was confident that the
judiciary was up to the task of determining the best meaning of any statute. “Resolution of
statutory ambiguities,” the Court explained, “involves legal interpretation. That task does not
suddenly become policymaking just because a court has an ‘agency to fall back on.’”55 The
majority stressed that courts resolve statutory ambiguities all the time when reviewing statutes
that has agencies have not yet interpreted or in cases where agencies are not involved.56 In the
Court’s view, the legal nature of questions of statutory interpretation do not change just because
an agency happens to be involved.57 By characterizing the resolution of statutory ambiguities as a
question of law, the Court swept away another one of Chevron’s presumptions—that ambiguities
call for agency expertise.58 In light of the majority’s reasoning, there is no role for agency
47 Id. at 2267–68.
48 Id. at 2266 (quoting THE FEDERALIST NO. 37, at 236 (J. Madison) (J. Cooke ed. 1961).
49 Id.
50 Id.
51 Id.
52 Id.
53 See id. Similarly, while the Court suggested in Chevron itself that courts should use “traditional tools of statutory
construction” at step one, it did not elaborate on what those tools are. Chevron U.S.A., Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837, 843 n.9 (1984).
54 See infra “The De Novo Standard of Review, Methods of Statutory Interpretation, and Statutory Ambiguity.” For a
longer discussion of statutory interpretation, see CRS Report R45153, Statutory Interpretation: Theories, Tools, and
Trends, by Valerie C. Brannon (2023).
55 Loper, 144 S. Ct. at 2268 (quoting Kisor v. Wilkie, 588 U.S. 558, 575 (2019)).
56 Id. at 2266.
57 Id.
58 Id. at 2268.
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expertise to play in interpreting a statute because courts—not agencies—are experts in statutory
interpretation.59
Application of the Skidmore Standard
Despite the Supreme Court’s direction that courts are obligated to exercise their independent legal
judgment, the majority emphasized several times that the executive branch’s views on the
meaning of a statute should be given “weight” or “respect” under certain circumstances.60 As the
Court explained, the views of the executive branch may, in the words of the 1944 Supreme Court
case Skidmore v. Swift & Co., have the “power to persuade, if lacking the power to control.”61
Prior to Loper, Skidmore primarily applied to agency interpretations that were not eligible to be
evaluated under the Chevron framework.62 The majority’s frequent reference to Skidmore and use
of language from that decision suggest that, going forward, the Court may expect lower courts to
look to Skidmore to guide their consideration of agencies’ preferred interpretations of ambiguous
statutes. Skidmore does not require courts to defer to agencies but permits courts to give weight or
respect to agency interpretations that the court considers persuasive.63 The Skidmore case itself
laid out a list of factors for courts to consider when determining whether an agency’s
interpretation commands the “power to persuade.”64 Under Skidmore,
the rulings, interpretations and opinions of [an agency], while not controlling upon the
courts by reason of their authority, do constitute a body of experience and informed
judgment to which courts and litigants may properly resort for guidance. The weight of
such a judgment in a particular case will depend upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to persuade, if lacking power to
control.65
Skidmore has received far less attention from the courts than Chevron has and may need
additional development by the courts to refine its application. How courts might apply Skidmore
after Loper is discussed below.66
Delegations to Agencies and Statutory Interpretation
The Loper Court’s emphasis on the judiciary’s role to render independent legal judgment on the
best meaning of a statute does not preclude a court from deciding that a statute’s best meaning is
that “the agency is authorized to exercise a degree of discretion.”67 The majority identified two
forms of delegation in particular.
59 Id.
60 Id. at 2265 (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
61 Id. at 2267 (quoting Skidmore, 323 U.S. at 140).
62 Kristen E. Hickman & Matthew D. Krueger, In Search of the Modern Skidmore Standard, 107 COLUM. L. REV. 1235,
1245–46 (2007), (summarizing the evolution of the Skidmore doctrine).
63 See Skidmore, 323 U.S. at 140.
64 Id.
65 Id.
66 See infra “Skidmore Weight.”
67 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2263 (2024).
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Express Delegations
This discretion, the Court explained, could be provided by an express delegation to an agency
from Congress to interpret a particular statutory term or phrase.68 The Court cited several statutes
where Congress has expressly delegated interpretive authority to an agency.69 For instance, the
Court cited a provision of the Fair Labor Standards Act, which states in relevant part:
[A]ny employee employed on a casual basis in domestic service employment to provide
companionship services for individuals who (because of age or infirmity) are unable to
care for themselves (as such terms are defined and delimited by regulations of the
Secretary).70
According to the Court in Loper, the phrase as such terms are defined and delimited by
regulations of the Secretary indicates that Congress delegated authority to the agency to define
the terms referenced in that statutory provision. The Court’s requirement that courts give effect to
a statute’s best meaning accordingly requires a court to respect Congress’s explicit choice of
which branch—executive or judicial—has the authority to render a final and binding
interpretation of a statutory provision.71
Delegations of Policy “Flexibility”72
In addition to expressly delegating interpretive authority to an agency to interpret a particular
word or phrase, the Court also identified instances where Congress has delegated authority to an
agency using terms or phrases “that ‘[leave] agencies with flexibility.’”73 The Court identified
terms such as appropriate and reasonable as indications that Congress has delegated flexibility to
the agency to make policy within “the boundaries of the delegated authority.”74 The Court cited
additional examples of statutory language that delegates this kind of flexibility.75 For instance, the
Court referred to the Clean Air Act, which states: “The Administrator shall regulate [power
plants] … if the Administrator finds such regulation is appropriate and necessary.”76 In instances
where such language is used, the majority reasoned that a court’s role is to “ensur[e] the agency
has engaged in ‘reasoned decisionmaking’ within [statutory] boundaries.”77
68 Id.
69 Id. at 2263 nn.5–6.
70 29 U.S.C. § 213(a)(15) (emphasis added).
71 See Loper, 144 S. Ct. at 2263.
72 The Court identified another category where Congress delegates authority to an agency. The Court identified it as
authority for an agency to “prescribe rules to ‘fill up the details’” of a statutory scheme. Id. (quoting Wayman v.
Southard, 23 U.S. (10 Wheat.) 1, 43 (1825)).
73 Id. (quoting Michigan v. EPA, 576 U.S. 743, 752 (2015)).
74 Id.
75 Id.
76 Id. at 2263 n.6 (citing 42 U.S.C. § 7412(n)(1)(A)) (emphasis added).
77 Id. at 2263 (quoting Michigan, 576 U.S. at 750). The Court’s reference to “reasoned decisionmaking” may be a nod
to a court’s role in reviewing an agency’s discretionary policy decisions, findings of fact, and exercise of its technical
expertise under the APA’s arbitrary and capricious standard of review. See id.; 5 U.S.C. § 706(2); Motor Vehicle Mfrs.
Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983). Under that standard,
which will be discussed in more detail below, an agency must show that its decision was reasonable give the facts
before it. State Farm, 463 U.S. at 43.
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Stare Decisis and Cases Decided at Chevron Step Two
Although the Supreme Court overruled Chevron, it appears to have preserved the holdings in
cases that were decided pursuant to the Chevron framework prior to Loper.78 In the briefing of the
case and during oral argument, the litigants and some of the Justices discussed the fate of cases
decided at Chevron step two.79 As explained above, at Chevron step two, a court must defer to an
agency’s reasonable interpretation of an ambiguous statute.80 In such a case, a court has not made
a specific ruling on what the statute means—it has left that determination to an agency in light of
the court’s finding at step one that the statute is ambiguous.81 At oral argument, some of the
Justices questioned the litigants about whether these step two decisions would still be considered
binding if Chevron were overruled.82 Counsel for the petitioners argued that overruling Chevron
would not disturb these cases because what the court had found at step two was that an agency’s
interpretation was “lawful.”83 The Court appears to have adopted this argument in its opinion,
holding that “we do not call into question prior cases that relied on the Chevron framework. The
holdings of those 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.”84 Despite the Court’s holding, questions are likely to remain about
what circumstances allow a court to overrule a past decision in favor of an agency based on the
application of step two of Chevron. That issue is taken up in more detail below.85
The Dissent
The dissent, penned by Justice Kagan and joined by Justices Sotomayor and Jackson (the latter
only with respect to the Relentless case),86 defended the Chevron framework on grounds that
largely track those that supported the continued application of Chevron for the past four
decades.87 Chevron, Justice Kagan wrote, is part of the “warp and woof of modern government”
and “reflects what Congress would want”: politically accountable expert agencies—not judges—
making policy.88 Justice Kagan, providing examples, explained that regulatory statutes often
contain ambiguities or gaps (sometimes purposefully so) that cannot be resolved without the
exercise of some kind of policymaking expertise that the courts simply do not have.89 Justice
Kagan reasoned that statutes with such ambiguities or gaps have not fixed any “best” meaning at
78 Loper, 144 S. Ct. at 2273.
79 See Brief for Respondents at 31, Loper Bright Enters. v. Raimondo, 143 S. Ct. 2244 (2024) (No. 22-451); Transcript
of Oral Argument at 59–61, Relentless, Inc. v. Dep’t of Commerce, 144 S. Ct. 2244 (2024) (No. 22-1219).
80 See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844–45 (1984).
81 See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs. 545 U.S. 967, 982 (2005) (holding “only a judicial
precedent holding that the statute unambiguously forecloses the agency’s interpretation, and therefore contains no gap
for the agency to fill, displaces a conflicting agency construction”).
82 Transcript of Oral Argument at 59:8-61:7, Relentless, Inc. v. Dep’t of Commerce, 144 S. Ct. 2244 (2024) (No. 221219).
83 Id.
84 Loper, 144 S. Ct. at 2273.
85 See infra “Further Litigation: Prior Chevron Cases.”
86 Justice Jackson recused herself from Loper Bright Enters. v. Raimondo, 143 S. Ct. 2429 (2023), because she was on
the panel that decided Loper Bright Enters. v. Raimondo, 45 F.4th 359, 363 (D.C. Cir. 2022), cert. granted in part, 143
S. Ct. 2429 (2023).
87 Loper, 144 S. Ct. at 2294 (Kagan, J., dissenting).
88 Id.
89 Id. at 2296–97.
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the time of enactment, and accordingly a court using the tools of statutory construction may find
multiple possible readings for which the statute provides no rule of decision for a court to choose
one over another.90
The judiciary’s role, Justice Kagan articulated, is only to ensure that an agency’s interpretation is
a reasonable one, which ensures that courts stay out of policymaking.91 This limited role for
courts, Justice Kagan stressed, is one of judicial “humility,” recognizing that agencies have a
better claim to democratic legitimacy and more expertise in making policy than courts do.92 In
other words, she explained, “agencies often know things about a statute’s subject matter that
courts could not hope to.”93 Courts, Justice Kagan explained, can “muddle through” when asked
to determine the meaning of an ambiguous statute, but, compared to an agency that Congress has
entrusted to administer a statute that may deal with technical subjects such as wildlife regulation
or medical drugs and devices, it is reasonable to believe that Congress would prefer the agency to
have interpretive authority.94
Implications for the Federal Judiciary
As with the Chevron framework, the Loper decision is legally binding only on the judiciary: It
sets out the proper methodology that courts must use for determining the meaning of a federal
statute where an agency has also provided its own interpretation.95 The Loper decision, however,
will likely affect the Supreme Court differently than it will the lower courts. The Supreme Court
has largely avoided applying the Chevron framework since 2016, while the lower courts, bound
by precedent to apply Chevron, were applying the framework regularly until the Court handed
down its Loper decision.96
The lower courts will also be called to address some of the questions left open by the Loper
decision. Over the coming years, courts may address how they are to engage in statutory
interpretation,97 whether and how the Skidmore standard applies to agency interpretations of
statutes,98 how to evaluate delegations of discretion from Congress to agencies,99 and Loper’s
interaction with other doctrines such as the major questions doctrine and Auer deference, which
applies to an agency’s interpretation of its own ambiguous regulations.100
90 Id. at 2297.
91 Id.
92 Id. at 2295.
93 Id. at 2298.
94 Id.
95 Id. at 2273 (majority opinion) (holding that courts are no longer permitted to apply the Chevron framework).
96 Id. at 2271–72 (citing William Eskridge & Lauren Baer, The Continuum of Deference: Supreme Court Treatment of
Agency Statutory Interpretations From Chevron to Hamdan, 96 GEO. L. J. 1083, 1125 (2008)) (“we have avoided
deferring under Chevron since 2016. That trend is nothing new; for decades, we have often declined to invoke Chevron
even in those cases where it might appear to be applicable.”); Isaiah McKinney, The Chevron Ball Ended at Midnight,
but the Circuits are Still Two-Stepping by Themselves, NOTICE & COMMENT, YALE J. ON REGUL. BLOG (Dec. 18, 2022),
https://www.yalejreg.com/nc/chevron-ended/ (studying the application of the Chevron framework in the lower courts in
2020 and 2021).
97 See infra “Methods of Statutory Interpretation.”
98 See infra “Skidmore Weight.”
99 See infra “Delegations from Congress.”
100 See infra “Relationship with other Doctrines of Judicial Review.”
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The Supreme Court
Between 2016 and its decision in Loper in 2024, the Court did not defer to agency interpretations
under Chevron and often did not even mention the framework in cases where it would have once
governed.101 Even prior to the past decade, scholars had identified a trend that the Court was
relying less on Chevron than might be expected.102 From roughly the mid-1980s to the mid2000s, studies found that the Supreme Court applied Chevron to about one-quarter103 to onethird104 of cases where an agency interpretation was at issue. Even where the Court applied
Chevron, various studies found that the application of Chevron had little effect on the outcome of
the case. A 2008 study, for instance, found that agencies prevailed about 76% of the time when
the Court applied Chevron—similar to agencies’ litigation successes in cases where the Court did
not apply Chevron.105
Another study that analyzed cases decided between 1984 and 1990 (i.e., just after the Court
decided the Chevron case) found similarly that the Court applied Chevron in only about one-third
of cases to which it would have been applicable.106 The same study found that despite Chevron’s
“agency friendly” reputation, agencies had a lower litigation success rate when the Court applied
Chevron than when it did not.107 These studies indicate that, at least at the Supreme Court,
Chevron may not have had a significant impact on the outcome of cases. Put another way by one
pair of scholars, “The Court’s questionable loyalty to Chevron suggests that the doctrine is not
meant to discipline Supreme Court decisionmaking. Instead, the doctrine may better serve to
control lower courts and provide nationwide uniformity.”108 This difference between the use of
Chevron at the Supreme Court and in the lower courts has led some to claim that there was a
“Chevron Supreme and a Chevron Regular.”109 Partially in light of this history at the Court, the
majority in Loper dubbed Chevron a “decaying husk” with little practical reason for keeping it.110
Overruling Chevron may ultimately have little effect on the way the Court approaches questions
of statutory interpretation that involve agencies. Rather than applying or even citing Chevron, the
Court has often engaged in what is known as de novo review of statutory text. De novo literally
means “anew” in Latin and, as applied to the judicial context, means that a reviewing court
analyzes the meaning of statutory text without deference to an agency.111 This type of review
reflects the approach the Court in Loper directs courts to apply as the proper approach to statutory
101 Loper, 144 S. Ct. at 2271–72.
102 See William Eskridge & Lauren Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory
Interpretations From Chevron to Hamdan, 96 GEO. L. J. 1083, 1125 (2008); Thomas W. Merrill, Judicial Deference to
Executive Precedent, 101 YALE L. J. 969, 982 (1992).
103 William Eskridge & Lauren Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory
Interpretations From Chevron to Hamdan, 96 GEO. L. J. 1083, 1125 (2008).
104 Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L. J. 969, 982 (1992).
105 William Eskridge & Lauren Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory
Interpretations From Chevron to Hamdan, 96 GEO. L. J. 1083, 1099 (2008).
106 Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L. J. 969, 981–84 (1992).
107 Id. at 984.
108 Kent Barnett & Christopher J. Walker, Chevron in the Circuit Courts, 116 MICH. L. REV. 1, 18 (2017).
109 Id. at 6.
110 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2272 (2024).
111 Isaiah McKinney, The Chevron Ball Ended at Midnight, but the Circuits are Still Two-Stepping by Themselves,
NOTICE & COMMENT, YALE J. ON REGUL. BLOG (Dec. 18, 2022), https://www.yalejreg.com/nc/chevron-ended; De novo,
BLACK’S LAW DICTIONARY (12th ed. 2024) (“When a court engages in de novo review of a legal issue, it makes an
independent determination without deference to any earlier analysis about the matter.”).
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interpretation.112 Overruling Chevron, accordingly, may have little impact on the outcome of
cases at the Court, as the Court began engaging in de novo review well before it overruled
Chevron.113
The Lower Courts
Overruling Chevron may have a larger impact on the lower courts. Until the day Loper was
decided, the lower courts were applying the Chevron framework regularly.114 According to legal
scholars, Chevron was cited by the federal courts roughly 18,000 times in the four decades of its
existence, making it the most-cited administrative law decision of all time and one of the most
cited cases in history.115 A 2017 study that evaluated more than 1,300 courts of appeals cases from
2003 to 2013—the largest study of courts of appeals decisions that refer to Chevron—found that
the courts of appeals on average applied Chevron in close to three-quarters of cases addressing
agency interpretations.116 A subsequent study that surveyed federal appellate cases from 2020 to
2021 revealed that courts of appeals continued to apply Chevron at similar rates as those founds
in the 2017 study.117 In the more recent study, federal courts of appeals applied Chevron in close
to 85% of cases where agency interpretation was at issue.118 Thus, unlike the Supreme Court, the
lower courts continued to apply Chevron in nearly all of the cases in which it would have applied
prior to Loper.119
Loper instructs courts to apply their independent legal judgment in determining the best
interpretation of statutes in light of any respect or weight given to agency interpretation under the
Skidmore standard.120 In other words, Loper instructs courts to engage in de novo review of
questions of statutory interpretation involving agencies potentially tempered by the Skidmore
standard.121 Lower courts are familiar with the de novo standard. It is the standard that has
traditionally been applied to questions of law where no agency had rendered an interpretation.122
After Loper, that same standard will apply in statutory interpretation cases where Chevron would
112 Loper, 144 S. Ct. at 2266.
113 Kristen E. Hickman & Aaron L. Nielson. Narrowing Chevron’s Domain, 70 DUKE L.J. 931, 934 (2021) (noting “At
a minimum, the Justices seem more willing to find clarity using traditional tools of statutory interpretation, thereby
avoiding Chevron deference altogether.”); see, e.g., Becerra v. Empire Health Foundation, 597 U.S. 424, 434 (2022)
(resolving the case without mentioning Chevron); Am. Hosp. Ass’n v. Becerra, 596 U.S. 724, 734 (2022) (same); Epic
Sys. Corp. v. Lewis, 584 U.S. 497, 520–21 (2018) (holding that where a statute is clear after application of tools of
statutory construction Chevron does not apply).
114 See, e.g., Soumah v. Collett, No. TDC-23-2473, 2024 WL 3201096, at *7 (D. Md. Jun. 26, 2024); Associated Gen.
Contractors of Am. v. DOL, No. 5:23-CV-0272-C, 2024 WL 3635540, at *11 (N.D. Tex. Jun. 24, 2024).
115 Ronald A. Cass, Chevron—Complicated, Start to Finish, 23 FEDERALIST SOC’Y REV. 265, 265 (2022); Christopher J.
Walker, Most Cited Supreme Court Administrative Law Decisions, NOTICE & COMMENT, YALE J. ON REGUL. BLOG
(Oct. 9, 2014), https://www.yalejreg.com/nc/most-cited-supreme-court-administrative-law-decisions-by-chris-walker/.
116 Barnett & Walker, supra note 108, at 5.
117 McKinney, supra note 111.
118 Id.
119 Id.; Barnett & Walker, supra note 108, at 29.
120 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2265 (citing Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944)).
121 Id.
122 See Pierce v. Underwood, 487 U.S. 552, 558 (1988) (noting that questions of law are traditionally reviewable de
novo).
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have once governed.123 The shift from Chevron to a de novo standard may affect the outcome of
those cases.
According to the 2017 study, in general, agencies were significantly more likely to prevail in the
lower courts when a court applied the Chevron framework (77.4%)—even if the court decided
that the statute was unambiguous and did not defer to the agency’s interpretation—than when a
court applied Skidmore (56.0%) or no deference regime whatsoever (38.5%).124 Given these data,
it is possible that overruling Chevron will, in the aggregate, diminish the chances that agencies
will prevail in federal court in cases where questions of statutory interpretation arise.125 Several
factors may moderate that trend. According to the 2017 study authors, “courts could be
strategically choosing deference regimes that more easily allow them to reach an outcome that
matches their policy preferences.”126 In other words, some courts may have applied the Chevron
framework in cases where the agencies were likely to prevail anyway and did not apply the
framework where they believed that the agencies were not likely to win.
Agencies may also change their behavior to accommodate the courts’ new standard of review.127
A 2014 study indicated that agency rule drafters may adopt less “aggressive” interpretations of
statutes when they did not expect Chevron to apply.128
The Loper decision itself also recognizes that in certain circumstances, agencies’ interpretations
should be given “great weight” or “respect” pursuant to Skidmore.129 The Court also recognized
that in some cases, the best reading of a statute is that Congress delegated discretion to the
agency—not the courts.130 How the lower courts implement these principles from the Loper
decision is yet to be seen. Nonetheless, they provide courts with the option to adopt an agency’s
interpretation under appropriate circumstances or determine that a statute has delegated the
authority to resolve the statutory interpretation question to the agency.
The Court’s citation to other pre-APA cases (such as Hearst Publications) that, in the Court’s
view, formed the traditional understanding of judicial review codified in Section 706 may also
signal approval of the lower courts engaging in deferential review where an agency’s
123 Loper, 144 S. Ct. at 2266.
124 Barnett & Walker, supra note 108, at 30. These aggregate averages disguise significant variation in outcomes across
different federal circuit courts of appeals, different agencies, and different subject matters. For example, the D.C.
Circuit led the way in applying Chevron, relying on it in approximately 89% of cases that concerned agency
interpretations of a statute, while the Sixth Circuit applied Chevron in 61% of cases involving agency interpretation. Id.
at 44. Courts of appeals applied Chevron at high rates (75%-100%) to cases involving telecommunications, Indian
affairs, and pensions, and courts deferred to agencies under Chevron at similar rates (83%-92%) in those same subject
matter areas. Id. at 50, 54. Conversely, courts applied Chevron less frequently (52%-67%) in cases involving housing,
tax law, and employment. Id. at 50. Furthermore, even when the courts applied Chevron in this latter group of cases,
win rates for agencies were comparatively low (69%-81%). Id. at 54. Somewhat surprisingly, some agencies, such as
the Federal Trade Commission, had a higher litigation success rate when courts did not apply Chevron. Id. at 54.
Overruling Chevron will likely have differing effects within different circuits and across different agencies.
125 See generally Robert Lafolla, GOP-Picked Judges Take Hard Line on Regulations Post-Chevron, BLOOMBERG LAW
(Sep. 4, 2024), https://news.bloomberglaw.com/daily-labor-report/gop-picked-judges-take-hard-line-on-rules-afterchevrons-demise (finding that out of 26 cases decided after Loper agencies won only 4).
126 Barnett & Walker, supra note 108, at 32.
127 For a more detailed discussion, see infra “Implications for Executive Branch Agencies.”
128 Christopher J. Walker, Chevron Inside the Regulatory State: An Empirical Assessment, 83 FORDHAM L. REV. 703,
724 (2014).
129 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2265 (citing Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944)).
130 Id. at 2263.
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interpretation is particularly fact-bound.131 Skidmore, statutory delegations, and mixed questions
of law and fact are discussed in more detail below.132
Some scholars have contended that Chevron may have saved lower courts time by permitting
them to engage in meaningful review without having to start from scratch interpreting complex
statutory regimes.133 In the absence of the Chevron framework, it is possible that lower courts
might turn to other doctrines that serve a similar function as Chevron.134 Two of those doctrines—
Skidmore and congressional delegations—are addressed in more detail below.135
The De Novo Standard of Review, Methods of Statutory
Interpretation, and Statutory Ambiguity
Scholars have described judicial standards of review as a continuum with independent judgment
or de novo review on one end and Chevron deference at the other.136 The Loper decision fits this
model, holding that a court applying the de novo review standard is required to exercise its
independent judgment to determine the best interpretation of a federal statute.137 Under the de
novo standard of review, an agency receives no deference whatsoever.138
The de novo standard of review typically refers to the methods courts apply to independently
determine the meanings of statutes. The Supreme Court in Loper (as well as Chevron) called
these methods the “traditional tools of statutory construction.”139 The Court’s reference to
“traditional tools,” however, masks significant debate over which methods of statutory
interpretation are included in a court’s traditional toolkit.140 While the Court used this same
phrase in Chevron, the importance of particular interpretive methods has changed since Chevron
131 Id. at 2259, 2263.
132 See infra “Policy Discretion, Mixed Questions of Law and Fact, and Arbitrary and Capricious Review;” “Skidmore
Weight;” “Delegations from Congress.”
133 See Barnett & Walker, supra note 108, at 71; Thomas W. Merrill, Response: Chevron’s Ghost Rides Again, 103
B.U. L. REV. 1717, 1738 (2023); Gary Lawson, The Ghosts of Chevron Present and Future, 103 B.U. L. REV. 1647,
1709 (2023).
134 See Lisa Schultz Bressman, Lower Courts After Loper Bright, 31 GEO. MASON L. REV. 499, 504 (2024) (arguing
“deference (of the controlling variety) is unlikely to disappear after Loper Bright”).
135 See infra “Skidmore Weight;” “Delegations from Congress.”
136 See, e.g., Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89
COLUM. L. REV. 452, 453–54 & n.10 (1989); Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE
L.J. 969, 971 & n.6 (1992).
137 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2266 (2024).
138 See, e.g., Salve Regina College v. Russell, 499 U.S. 225, 238 (1991); Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638,
650 (1990) (holding that the Court would not defer to an agency’s interpretation of a judicial review provision); Denis
v. Att’y Gen. of United States., 633 F.3d 201, 207–08 (3d Cir. 2011) (contrasting Chevron deference with de novo
review).
139 Loper, 144 S. Ct. at 2266; see also Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 843 n.9 (1984);
Am. Hosp. Assoc. v. Becerra, 596 U.S. 724, 739 (2022).
140 See, e.g., THE CHEVRON DOCTRINE, supra note 41, at 110 (explaining that use of legislative history “was the most
obvious point of disagreement” over what tools are included in the traditional toolkit); Bostock v. Clayton Cty, 590
U.S. 644, 654–63 (2020) (explaining that the Court “normally interprets a statute in accord with the ordinary public
meaning of its terms at the time of its enactment”); id. at 685 (Alito, J., dissenting) (calling the majority’s statutory
analysis “a pirate ship ... sail[ing] under a textualist flag” but not adhering to textualist principles). Compare West
Virginia v. EPA, 597 U.S. 697, 736 (2022) (Gorsuch, J., concurring) (endorsing the use of some clear statement rules
such as the major questions doctrine as tools of statutory interpretation) with Biden v. Nebraska, 600 U.S. 477, 507
(2023) (Barrett, J. concurring) (noting that she “takes seriously” the claim that the major questions doctrine—described
by Justice Gorsuch as a clear statement rule—is “inconsistent with textualism”).
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was decided.141 Most notably, when Chevron was decided, the statutory interpretation method
known as textualism—which primarily focuses on the text of a law rather than legislative purpose
or prevailing societal values—was not as widely adopted by the federal courts as it is currently.142
It is unlikely that courts will return to pre-Chevron methods of statutory interpretation regardless
of the Court’s consistent reference to “traditional tools” of statutory interpretation.
Methods of Statutory Interpretation
The Chevron Court referred to the “traditional tools” of statutory interpretation in its discussion
of how a court should engage in a Chevron step one analysis (i.e., to determine whether a statute
is clear). As a result, a court’s step one analysis in many ways mirrored how courts approached
statutory interpretation as a general matter outside of the Chevron framework. Sweeping away the
Chevron framework did not inaugurate a new approach to statutory interpretation: The methods
the courts had been using at step one of Chevron and in cases where Chevron did not apply at all
will continue to apply to cases in which agency interpretations of law are at issue. How courts
approach statutory interpretation may accordingly shed light on how courts will approach legal
challenges to agency interpretations of statutes after Loper.
Despite some convergence toward a focus on the text of a statute over the past four decades,143
there remains significant current debate among judges and scholars over the proper methods of
statutory interpretation.144 There are different theories of statutory interpretation, and each
interpretive school has a distinct view of which tools courts should appropriately deploy when
they seek to discern statutory meaning.145 Some studies suggest that many judges do not subscribe
to any particular method of statutory interpretation, instead using different methods in different
141 See William N. Eskridge, et al., Textualism’s Defining Moment, 123 COLUM. L. REV. 1611, 1612–26 (2023)
(discussing the modern textualist revolution that began in earnest with Justice Scalia); John F. Manning, SecondGeneration Textualism, 98 CAL. L. REV. 1287, 1287–98 (discussing the rise of textualism in the 1980s). Compare J.W.
Bateson Co. v. United States ex rel. Bd. of Trs. of the Nat’l Automatic Sprinkler Indus. Pension Fund, 434 U.S. 586,
591 (1978) (concluding that “the authoritative Committee Reports” “leave[] no room for doubt about Congress’
intent”) with Epic Sys. Corp. v. Lewis, 584 U.S. 497, 523 (2018) (holding “legislative history is not the law. ‘It is the
business of Congress to sum up its own debates in its legislation,’ and once it enacts a statute ‘we do not inquire what
the legislature meant; we ask only what the statute means.’” (quoting Schwegmann Bros. v. Calvert Distillers Corp.,
341 U.S. 384, 396 (1951) (Jackson, J., concurring)). In fact, the Court in Chevron engaged in an extensive review of the
legislative history of the Clean Air Act—the statute at issue in Chevron. Chevron, 467 U.S. at 851–53.
142 See generally Jonathan T. Molot, The Rise and Fall of Textualism, 106 Colum. L. Rev. 1, 24 (2006) (discussing the
origins of modern textualism in the 1980s and 1990s); William N. Eskridge, et al., Textualism’s Defining Moment 123
Colum. L. Rev. 1611, 1611–16 (2023) (identifying earlier statutory interpretation methods and dubbing modern
textualism “clearly ascendant and will remain so for the foreseeable future”).
143 Jeffrey A. Pojanowski, Statutes in Common Law Courts, 91 Tex. L. Rev. 479, 480 (2013) (“The dust from the
Thirty Years’ statutory interpretation wars may have settled and, while textualism has not won an unconditional
surrender in the Supreme Court, it appears to have gained substantial territory before its truce with purposivism.”);
John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 75 (2006) (“I argue here that
textualism and purposivism do in fact share more conceptual common ground than textualists (myself included) have
sometimes emphasized. Nonetheless, salient differences remain.... ”).
144 See supra note 140 and accompanying text.
145 See CRS Report R45153, Statutory Interpretation: Theories, Tools, and Trends, by Valerie C. Brannon (2023)
(discussing various approaches to statutory interpretation); see also Lisa Shultz Bressman, Chevron’s Mistake, 58
DUKE L.J. 549, 551 (2009) (“In applying Chevron, courts rely heavily on the dominant theories of statutory
interpretation: intentionalism, purposivism, or textualism.”). See generally John F. Manning, Textualism and
Legislative Intent, 91 VA. L. REV. 419, 424 (2005) (“[W]hereas intentionalists believe that legislatures have coherent
and identifiable but unexpressed policy intentions, textualists believe that the only meaningful collective legislative
intentions are those reflected in the public meaning of the final statutory text.”).
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contexts.146 Nonetheless, many (if not most) courts start their statutory interpretation analyses
with the statutory text.147 Moreover, there are several variants of textualism applied throughout
the federal judiciary.148 Many, however, share some common assumptions, such as that the words
of a statute read in context are the best evidence of the meaning of the statute and that a court can
identify the best meaning by resorting to rules of grammar and syntax, context, and canons of
construction.149
A focus on text has consequences for which methods of statutory interpretation are considered
valid. For example, judges who consider themselves textualists may discount the value of
legislative history as poor evidence of the meaning of a statute because legislative history was not
enacted through the legislative process as the text of the statute was.150 They may turn to
legislative history only when a court cannot resolve the meaning of a statute using other
approaches or as a second order justification for an interpretation derived using more textualist
methods.151 Textualists may also turn to legislative history not as objective evidence of
congressional intent but as evidence of ordinary meaning (i.e., how Congress used a statutory
term).152 Textualists are sometimes skeptical of methods of interpretation that impose judges’
146 See, e.g., Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges
on the Federal Courts of Appeals, 131 HARV. L. REV. 1298 (2018); James J. Brudney & Lawrence Baum, Protean
Statutory Interpretation in the Courts of Appeals, 58 WM. & MARY L. REV. 681 (2017); Daniel M. Schneider,
Empirical Research on Judicial Reasoning: Statutory Interpretation in Federal Tax Cases, 31 N.M. L. REV. 325, 338–
51 (2001); Aaron-Andrew P. Bruhl, Statutory Interpretation and the Rest of the Iceberg: Divergences between the
Lower Federal Courts and the Supreme Court, 68 DUKE L. J. 1, 56 (2018).
147 See, e.g., Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 583 U.S. 366, 378 (2018) (“Our analysis beings with the
text ... and we look to both ‘the language itself and the specific context in which that language is used.’” (quoting
Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)); United States v. Magassouba, 544 F.3d 387, 404 (2d Cir. 2008)
(laying out the traditional hierarchy of statutory interpretation tools, starting with plain text and context, and moving to
canons of construction if the plain text is found to be ambiguous, and finally resorting to legislative history only if after
the application of canons of construction the statute is still unclear); CGM, LLC v. BellSouth Telecomms, Inc., 664
F.3d 46, 53–54 (4th Cir. 2011) (quoting Graden v. Conexant Systems Inc., 496 F.3d 291, 295 (4th Cir. 2007)) (“We
employ the usual tools of statutory interpretation. We look first at the text of the statute and then, if ambiguous, to other
indicia of congressional intent such as the legislative history.”).
148 See William N. Eskridge, et al., Textualism’s Defining Moment, 123 COLUM. L. REV. 1611, 1616–23 (2023)
(summarizing debates among modern textualists).
149 See generally Caleb Nelson, What is Textualism?, 91 VA. L. REV. 347, 348 (2005); John F. Manning, What Divides
Textualists from Purposivists?, 106 COLUM. L. REV. 71, 91–92 (2006); Brett M. Kavanaugh, Fixing Statutory
Interpretation, 129 HARV. L. REV. 2119, 2135 (2016). Tools of statutory construction that focus on determining
legislative intent have become somewhat more controversial since Chevron was decided but are sometimes still
deployed. Compare, e.g., Babbitt v. Sweet Home Chapter of Cmtys. for a Great Oregon, 515 U.S. 687, 698 (1995)
(“[T]he broad purpose of the ESA supports the Secretary’s decision to extend protection against activities that cause the
precise harms Congress enacted the statute to avoid.”); with id. at 726 (Scalia, J., dissenting) (“Deduction from the
‘broad purpose’ of a statute begs the question if it is used to decide by what means (and hence to what length) Congress
pursued that purpose; to get the right answer to that question there is no substitute for the hard job (or, in this case, the
quite simple one) of reading the whole text.”).
150 See Nelson, supra note 149, at 393–94.
151 See supra note 147; see also Fischer v. United States, 144 S. Ct. 2176, 2186 (2024) (turning to “the history” of a
criminal law provision to support the Court’s textual analysis of a catchall phrase); Snyder v. United States 144 S. Ct.
1947, 1955 (2024) (turning to enactment history to support the Court’s evaluation of the text of a bribery statute);
Astrue, 566 U.S. at 553 (2012) (considering prior version of statute); INS v. Cardoza-Fonseca, 480 U.S. 421, 436–37,
441–42 (1987) (reviewing congressional record and rejection of Senate version of bill); THE CHEVRON DOCTRINE, supra
note 41, at 108; see also Cardoza-Fonseca, 480 U.S. at 453 (Scalia, J., concurring) (disapproving of majority’s use of
legislative history because courts “are not free to replace [clear statutory language] with an unenacted legislative
intent”). The Chevron decision itself, however, relied heavily on legislative history in coming to its conclusion about
the meaning of the Clean Air Act. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 851–53 (1984).
152 Bostock v. Clayton Cnty., 590 U.S. 644, 674–75 (2020) (“To ferret out such shifts in linguistic usage or subtle
(continued...)
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substantive values on the meaning of the text, such as clear statement rules or other substantive
canons of construction.153 As noted above, however, many judges take a more eclectic approach
to statutory interpretation and may deploy these tools of interpretation at different times or in
different ways.
In addition, some of the Supreme Court’s more recent decisions have appeared to use older tools
of statutory construction that were commonly used prior to Chevron. It was common prior to
Chevron for courts to look to long-standing agency practice as evidence of a statute’s meaning.154
After Chevron was decided, there was some dispute over whether courts should continue to do so
as part of the Chevron framework.155 While the Court never entirely stopped referring to past
agency practice,156 more recently, the Court has appeared to rely on it more often.157 The Court in
Loper appeared to explicitly endorse past agency practice as an appropriate tool of statutory
interpretation.158 In Loper, for instance, the Court interpreted Section 706 of the APA by relying
in part on the Department of Justice’s long-standing interpretation of Section 706 set forth in a
1947 manual.159 The Loper Court explicitly justified its use of past agency practice by citing
Skidmore,160 which identified a number of indicia to which a court may look to determine the
persuasiveness of an agency’s interpretation. Some of those indicia include the consistency of an
agency’s interpretation and whether the interpretation was issued contemporaneously with the
distinctions between literal and ordinary meaning, this Court has sometimes consulted the understandings of the law’s
drafters as some (not always conclusive) evidence.”); Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2262 (2024)
(“The text of the APA means what it says. And a look at its history if anything only underscores that plain meaning.”).
153 See CRS Legal Sidebar LSB11084, Clear Statement Rules, Textualism, and the Administrative State, by Benjamin
M. Barczewski and Valerie C. Brannon (2023). A substantive canon of construction is a judicial presumption for or
against certain outcomes in a case. Id. A clear statement rule is a type of substantive canon that represents a judicial
presumption that courts should not interpret a statute a certain way unless Congress made a “clear statement” requiring
that outcome. Id.
154 THE CHEVRON DOCTRINE, supra note 41, at 34–37; Aditya Bamzai, The Origins of Judicial Deference to Executive
Interpretation, 126 YALE L.J. 908, 938 (2017).
155 THE CHEVRON DOCTRINE, supra note 41, at 34–45, 134–37. Explicit reference to longstanding agency interpretations
was somewhat rare post-Chevron. See id. at 137–38; Cardoza-Fonseca, 480 U.S. at 434–35; Barnhart v. Walton, 535
U.S. 212, 219–20 (2002); NLRB v. United Food & Com. Workers Union, 484 U.S. 112, 124 n.20 (1987); Thomas W.
Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969, 984–85, 1018–22 (1992) (finding in a study of
the Court’s opinions citing Chevron between 1984 and 2006 that the Court referred to the long-standing nature of an
interpretation less often after Chevron). Justice Scalia took issue with the Court’s reliance on past agency practice,
arguing that after Chevron inquiries into past agency practice is “a relic of pre-Chevron days.” Barnhart, 535 U.S. at
226 (Scalia, J., concurring in part and concurring in the judgment).
156 See, e.g., Barnhart, 535 U.S. 212, 219–20 (2002) (noting the agency’s interpretation was “longstanding”); Solid
Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs 531 U.S. 159, 168 (2001) (looking to agency’s original
interpretation of a federal statute); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 145–46 (2000) (looking
to prior agency interpretations of the governing statute, as announced in congressional hearings).
157 See, e.g., West Virginia v. EPA, 597 U.S. 697, 726–27 (2022) (turning to EPA’s long-standing interpretation of a
provision of the Clean Air Act as evidence of statutory meaning); Biden v. Nebraska, 600 U.S. 477, 497 (2023)
(surveying the Department of Education’s interpretation of a statute over time as evidence of the statute’s meaning);
Am. Hosp. Assoc. v. Becerra, 596 U.S. 724, 729 (2022) (noting that the Department of Health and Human Services
consistently relied an interpretation of the Medicare Act for decades); Nat’l Fed. of Indep. Bus. v. Occupational Safety
and Health Admin., 595 U.S. 109, 119–20 (2022) (noting the novelty of the agency’s interpretation of a statute in
finding that it lacked the authority it claimed); THE CHEVRON DOCTRINE, supra note 41, at 34–45 (discussing the
prevalence of the Court resorting to past agency practice in the decades prior to Chevron).
158 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2262 (2024) (citing Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944); United States v. Am. Trucking Ass’ns, 310 U.S. 534, 549 (1940)) (“[I]nterpretations issued contemporaneously
with the statute at issue, and which have remained consistent over time, may be especially useful in determining the
statute’s meaning.”).
159 Id. (citing Dep’t of Justice, Attorney General’s Manual on the Administrative Procedure Act 108 (1947)).
160 Id.
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statute.161 Skidmore predated the APA by two years and, in the Court’s view, forms part of the
general background norms of judicial review that were codified in Section 706 of the APA.162
Statutory Ambiguity
Related to the broader debates in the legal community over the proper methods of statutory
interpretation, the majority and the dissent in Loper split over whether statutory ambiguity could
still exist even after the application of the traditional tools of statutory interpretation. The
existence of statutory ambiguity was a central assumption of the Chevron framework.163
Chevron’s first step required a court to apply the traditional tools of statutory construction to
determine whether the statute at issue was clear or ambiguous.164 The implicit assumption in the
Chevron framework was that there would be some statutes that, even after the application of all
the generally accepted methods of statutory interpretation, may not yield clear answers. In these
situations, the Loper dissent argued that “Congress’s instructions have run out.”165 The choice
between different reasonable interpretations of an ambiguous statute was, according to the
dissent’s view, more akin to policy than to law.166 Where statutory ambiguity existed, the Court in
Chevron determined that the judiciary should stay out of making policy.167 Accordingly, the APA’s
charge that courts “decide all relevant questions of law” did not conflict with Chevron on this
account, because instances where courts deferred were not questions of law.168
The Loper Court rejected the claim that statutory ambiguity implies an absence of law.169 For the
majority, law never “run[s] out.”170 Questions of the meaning of a statute are, for the Loper Court,
always questions of law susceptible to resolution by the application of the tools of statutory
interpretation.171 “[S]tatutes, no matter how impenetrable, do—in fact, must—have a single, best
meaning” that is “fixed at the time of enactment.”172 In Loper the Court left unsaid which tools
161 Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (“We consider that the rulings, interpretations and opinions of
the Administrator under [the Fair Labor Standards] Act ... constitute a body of experience and informed judgment to
which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will
depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and
later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”).
162 Loper, 144 S. Ct. at 2262, 2265.
163 See Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). During the four decades
between Chevron and Loper, judges and scholars often debated how clear a statute needed to be in order for a court to
resolve the case at step one of Chevron or move to step two. See Antonin Scalia, Judicial Deference to Administrative
Interpretations of Law, 1989 DUKE L. J. 511, 520 (“Here, of course, is the chink in Chevron’s armor—the ambiguity
that prevents it from being an absolutely clear guide to future judicial decisions (though still a better one than what it
supplanted). How clear is clear?”); Jeffrey A. Pojanowski, Without Deference, 81 MO. L. REV. 1075, 1082 (2016)
(noting “lurking questions about how hard courts ought to work before deciding whether a statute is clear”);
Kavanaugh, supra note 149, at 2138; Ryan D. Doerfler, How Clear is Clear?, 109 VA. L. REV. 651 (2023). The
question in Loper, however, shifted from how to identify statutory ambiguity to whether statutory ambiguity even
exists after the application of the tools of statutory interpretation. Loper, 144 S. Ct. at 2266.
164 Chevron, 467 U.S. at 842–43.
165
Loper, 144 S. Ct. at 2294 (Kagan, J., dissenting).
166 Id.
167 Chevron, 467 U.S. at 865–66; see also Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2373
(2001) (arguing the “Chevron deference rule had its deepest roots in a conception of agencies as instruments of the
President” and is best justified as ensuring that policymaking functions track political accountability).
168 Loper, 144 S. Ct. at 2302 (Kagan, J., dissenting).
169 Id. at 2266–68.
170 Id. at 2266.
171 Id.
172 Id. (emphasis added).
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produce the most persuasive evidence of statutory meaning—for example, the text of the statute,
statutory purposes, or legislative history.173 It is likely, given the views of a majority of Justices
expressed in other opinions, that they would consider themselves textualists.174 Although
textualists typically focus on what is within the four corners of the statute, modern textualists also
take into account certain types of “context.”175 Context can be as narrow as the context in which a
contested word or phrase is used in the statute itself176 or as broad as general constitutional
norms.177 Falling somewhere between those two poles, statutory structure,178 enactment history179
and prior judicial precedent180 can also supply “context” for the meaning of a statute. Judges and
scholars, however, debate the proper use of context, including how widely courts should look for
context and under what circumstances some forms of context should be used.181
Regardless of which evidence is used to determine the meaning of a statute, the Court’s statement
that a statute’s meaning (however determined) is fixed at a particular time—the time of
enactment—implies that post-enactment policy considerations by, for example, agency personnel
implementing the statute (as happened under Chevron) and possibly by courts interpreting the
statute may be inappropriate as a means to provide meaning to a statute. If this reading of the
Loper decision is correct, it may call into question certain tools of statutory construction (e.g.,
substantive canons of construction) that themselves are triggered by ambiguity and impose postenactment and extratextual value choices on a statute’s text.182
In a footnote in her dissent, Justice Kagan took up this issue, arguing that the majority’s view that
Chevron was based on an erroneous presumption when a court identified an ambiguity may call
into question other presumptions that are likewise triggered by “a congressional lack of
173 See id.
174 Bostock v. Clayton County, 590 U.S. 644, 654 (2020) (“This court normally interprets a statute in accord with the
ordinary public meaning of its terms.... ”); Food Mktg. Inst. v. Argus Leader Media, 588 U.S. 427, 436 (2019) (“In
statutory interpretation disputes, a court’s proper starting point lies in a careful examination of the ordinary meaning
and structure of the law itself.”); Kevin Tobia, et al. Statutory Interpretation from the Outside, 122 COLUM. L. REV.
213, 216 (2022) (noting that a majority of Supreme Court justices adhere to textualist principles).
175 See, e.g., Biden v. Nebraska, 600 U.S. 477, 511–12 (2023) (Barrett, J., concurring) (discussing the importance of
“context” in textualist statutory interpretation methodology).
176 See Brown v. United States, 602 U.S. 101, 112 (2024) (relying in part on the provisions surrounding the contested
term as evidence of its meaning); John Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2457 (2003).
177 Snyder v. United States, 603 U.S. 1, 13 (2024) (holding that notions of federalism point in favor of a particular
interpretation of a statute); see also Biden, 600 U.S. at 515 (Barrett, J., concurring) (arguing that the major questions
doctrine “makes eminent sense in light of our constitutional structure, which is itself part of the legal context”).
178 See, e.g., Becerra v. Empire Health Found., 597 U.S. 424, 434 (holding that the structure of the Medicare Act
supported the agency’s interpretation); Snyder, 603 U.S. at 12 (relying in part on statutory structure as evidence of
statutory meaning).
179 See, e.g., Becerra v. San Carlos Apache Tribe, 602 U.S. 222, 238 (2024) (recounting the enactment history of the
contested provision of the statute and relying on it in part as evidence of statutory meaning); Snyder, 603 U.S. at 12
(“[T]he statutory history ... reinforces [our] textual analysis.”).
180 See, e.g., Brown, 602 U.S. at 111–12 (relying in part on prior judicial precedent to determine the meaning of a
statute).
181 See, e.g., William N. Eskridge, et al., Textualism’s Defining Moment, 123 COLUM. L. REV. 1611, 1660 (2023)
(surveying disputes among textualists about the proper use of “context”).
182 See, e.g., Iancu v. Brunetti, 588 U.S. 388, 397 (2019) (holding that the constitutional avoidance canon applies only
where a statute is found to be ambiguous); Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 590 (2008) (holding that
the Court need not apply the sovereign immunity canon because the statute was not ambiguous); South Carolina v.
Catawba Indian Tribe, Inc. 476 U.S. 498, 506 (1986) (holding that an ambiguity in a statute must exist before the court
resorts to the Indian canon); Hassett v. Welch, 303 U.S. 303, 314 (1938) (“Resort is had to canons of constructions as
an aid in ascertaining the intent of the Legislature.... The matter is, we think, involved in sufficient ambiguity to
warrant our seeking such aid.”).
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direction.”183 In Justice Kagan’s view, like Chevron, these presumptions both rely on identifying a
statutory gap or ambiguity and impose post-enactment values on the meaning of a statute.184 The
majority’s skepticism of the existence of ambiguity as a trigger for Chevron may prompt courts to
revisit some of these other presumptions.185
Whether and to what extent lower courts embrace the Court’s view of statutory ambiguity is yet
to be seen. The Court’s skepticism of the existence of ambiguity, if taken at face value by the
lower courts, may have implications for how courts approach statutory interpretation in general
and which tools of statutory construction are considered applicable in particular. For instance, as
described above, substantive canons are triggered only by ambiguity.186 Substantive canons are
judicial presumptions that impose certain substantive values on the outcome of a case.187 Unlike
semantic canons, substantive canons are not derived from general assumptions about how
ordinary speakers use English or how Congress uses statutory terms.188 For instance, the
federalism canons serve to preserve the federal-state balance, requiring Congress to make a clear
statement before intruding on state authority.189 As a result, substantive canons are viewed by
certain judges with some trepidation because they impose judicial values that may not be
represented in the text of the statute.190
Moreover, the application of Skidmore and other deference doctrines such as Auer deference,
which are discussed in more detail below, may also be affected by the Court’s skepticism of
ambiguity.191 Skidmore, like some canons of construction, has often been applied where a court is
unable, after using the tools of statutory construction, to resolve a question of statutory
183 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2297 n.1 (2024) (Kagan, J., dissenting) (quoting Boechler v.
Commissioner, 596 U.S. 199, 203 (2022)) (citing to the presumption against extraterritoriality, the presumption against
retroactivity, the presumption against implied repeal, and the “(so far unnamed) presumption against treating a
procedural requirement as ‘jurisdictional’”); see also Abbe R. Gluck, Overruling Chevron Without a Coherent Theory
of Statutory Interpretation and the Court-Congress Relationship, 62 HARV. J. ON LEG. 20 (2024) (arguing that Loper
calls into question many tools of statutory construction that rely on ambiguity as a trigger and a presumption about
congressional intent).
184 Loper, 144 S. Ct. at 2297.
185 One potential way courts could respond is along the lines suggested by then-Judge Kavanaugh. Kavanaugh, supra
note 4, at 2144. Prior to joining the Court, then-Judge Kavanaugh wrote that, rather than determining whether a statute
is clear or ambiguous, a court should identify the “best reading” of a statute. Id. Once the best reading has been
identified, the court “can apply—openly and honestly—any substantive canons (such as plain statement rules of the
absurdity doctrine) that may justify departure from the text.” Id.
186 See id.
187 See Barczewski & Brannon, supra note 153 (discussing clear statement rules and substantive canons of
construction).
188 CRS Report R45153, Statutory Interpretation: Theories, Tools, and Trends, by Valerie C. Brannon (2023).
189 Id. at 57.
190 Biden v. Nebraska, 600 U.S. 477, 507–08 (2023) (Barrett, J. concurring) (discussing reactions to substantive
canons); Barczewski & Brannon, supra note 153 (discussing the reaction some textualist judges and scholars have to
substantive canons); Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. REV. 109, 110
(explaining that substantive canons “pose[] a significant problem” for textualists); Robert A. Katzmann, JUDGING
STATUTES 52 (2014) (“[W]iping out legislative history, in the face of empirical evidence that Congress views it as
essential in understanding its meaning, leaves us largely with a canon-based interpretive regime that may not only fail
to reflect the reality of the legislative process, but may also undermine the constitutional understanding that Congress’s
statutemaking should be respected as a democratic principle.”); Stephen Breyer, On the Uses of Legislative History in
Interpreting Statutes, 65 S. CAL. L. REV. 845, 870 (1992) (arguing legislative history is more accessible than are the
canons to give notice of statutory meaning).
191 See infra, “Auer (Kisor) Deference.”
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meaning.192 The same goes for Auer deference.193 Like Chevron, Auer deference applies only
where a court first identifies an ambiguity.194 Thus, if it is not possible for ambiguity to exist after
applying the traditional tools, Skidmore and Auer deference would never come into play. Whether
these doctrines and tools of statutory construction will play a significant role or even persist in
future cases is unclear.
It is possible to read the Loper majority’s view more modestly. The Supreme Court stressed that
courts should “use every tool at their disposal to determine the best reading of the statute.”195
Tools such as substantive canons, Auer, and Skidmore can help resolve statutory ambiguities and
at least superficially appear to fit within the majority’s view that questions about the meaning of
statutes should be resolved through legal means.196 Under this view, the Court was simply
reiterating that questions of the meaning of law are legal questions to be resolved by any means
peculiar to courts.197 This more modest view stands in some tension with the Court’s description
of a statute as having a “single best” meaning “fixed at the time of enactment.”198
Skidmore Weight
The Supreme Court cited Skidmore several times in the Loper decision.199 The Court’s frequent
invocation of Skidmore appears to endorse courts’ consideration of agency practice as potential
evidence of the best meaning of a statute.200
Prior to Loper, Chevron deference applied only to an interpretation that had been issued by an
agency that possessed statutorily delegated authority to regulate with the force of law and used
that delegated authority to announce its interpretation.201 Interpretations advanced in non-legally
binding forms—such as guidance documents, policy statements, or interpretive rules—were not
eligible for Chevron deference.202 In the 2001 case United States v. Mead, the Supreme Court held
192 Hickman & Krueger, supra note 62, at 1254–55 (2007) (noting that courts typically find statutes to be ambiguous or
less than clear before turning to Skidmore). The Court in Loper cited favorably to Skidmore as a potential tool to
resolve statutory ambiguity but did not address under what circumstances a court should resort to Skidmore. Given its
statements about ambiguity, it is not clear how much of a rule Skidmore will play in future cases. Some lower court
cases decided after Loper appear to embrace the view that Skidmore applies only if the court cannot determine the
meaning of statute by other means. See infra, “Post-Loper Applications of Skidmore.”
193 See Kisor v. Wilkie, 588 U.S. 558, 573 (“[T]he possibility of deference can arise only if a regulation is genuinely
ambiguous.”).
194 Id.
195 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2266 (2024).
196 Id. at 2266–68. At least one commentator has taken a similar view of the Court’s statements in Loper. See Charles F.
Capps, Does the Law Ever Run Out?, 100 NOTRE DAME L. REV. (forthcoming 2025),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4908863. Some scholars have classified deference doctrines as
canons of statutory construction rather than binding precedent. Connor N. Raso & William N. Eskridge, Jr., Chevron as
a Canon, Not a Precedent: an Empirical Study of What Motivates Justices in Agency Deference Cases, 110 COLUM. L.
REV. 1727, 1765 (2010).
197 See Loper, 144 S. Ct. at 2266–68.
198 Id. at 2266.
199 Id. at 2259, 2262, 2265, 2267.
200 See id. at 2267 (holding agency “expertise has always been one of the factors which may give an Executive Branch
interpretation particular ‘power to persuade, if lacking power to control.’” (quoting Skidmore v. Swift & Co. 323 U.S.
134, 140 (1944))).
201 United States v. Mead Corp., 533 U.S. 218, 234 (2001).
202 Id.
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that even where an agency interpretation, because of its lack of the force of law, was ineligible for
Chevron, it may be eligible to be evaluated pursuant to Skidmore.203
Chevron and subsequent cases refining its application, such as Mead, accordingly created a twotiered standard of review for agency interpretations.204 Agency interpretations that carried the
force of law were eligible for evaluation under Chevron, while every other interpretation by an
agency was potentially eligible for treatment pursuant to Skidmore.205 By overruling Chevron,
Loper collapsed this two-tiered system into a single standard of review, with the option for courts
to evaluate an agency’s interpretation pursuant to Skidmore where appropriate.206 As a result, any
agency interpretation is now potentially eligible to be evaluated under Skidmore, although, given
the Court’s statements regarding ambiguity, it is not clear how much of a role Skidmore will play
in the future.207
Skidmore is considered to be less deferential than Chevron is.208 Just how deferential Skidmore is,
however, has been the subject of some debate.209 The Court in Mead, for example, described
Skidmore as providing “some deference”210 to agency interpretations, though not “the same
deference as [interpretations] that derive from the exercise of delegated lawmaking powers.”211 At
bottom, unlike Chevron, Skidmore is understood to permit—but not require—a court to adopt an
agency’s interpretation.212 Skidmore provided a framework through which a court might give
special consideration to an agency’s interpretation.213
It is still not entirely clear whether application of Skidmore post-Loper will resemble the courts’
application of Skidmore during the time of Chevron. Only a relatively small number of cases have
addressed Skidmore post-Loper. Moreover, prior to Loper, Skidmore typically applied only to
agency interpretations that did not carry the force of law. In practice, this scope meant that most
agency interpretations evaluated pursuant to Skidmore were not promulgated through notice and
comment rulemaking and as a result may have lacked the thorough explanations that accompany
203 Id.
204 Id.; Thomas W. Merrill & Kristen E. Hickman, Chevron’s Domain, 89 GEORGETOWN L.J. 833, 863 (2001)
(discussing the continued existence of Skidmore as a default deference doctrine when Chevron did not apply); Peter L.
Strauss, “Deference” is too Confusing—Let’s Call them “Chevron Space” and “Skidmore Weight”, 112 COLUM. L.
REV. 1143, 1146 (2012) (identifying the different circumstances in which Chevron and Skidmore applied).
205 See Mead, 533 U.S. at 234; Christensen v. Harris County, 529 U.S. 576, 586–88 (2000).
206 See Loper, 144 S. Ct. at 2267.
207 See id. See also supra, “Statutory Ambiguity.” At least one scholar has argued that Loper, by doing away with
Mead’s focus on agency procedures as a threshold to being eligible to be evaluated under the Chevron framework, may
open the door to courts paying “due respect” to “a type of specialized lawyerly expertise that comes with extensive
executive branch experience, such that agency legal briefs, ... can still warrant special respect in court.” Adam Crews,
Navigating the New Loper Bright Regime, 34 WIDENER COMMONWEALTH L. REV. 41, 64–65 (2024).
208 Mead, 533 U.S. at 234–35; Merrill, supra note 204, at 860–63. But see William N. Eskridge, Jr. & Lauren E. Baer,
The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan,
96 GEO. L. J. 1083, 1099 (2008) (finding between 1983 and 2005 agencies won 76.2% of cases when the Supreme
Court applied Chevron and 73.5% when the Court applied Skidmore).
209 Hickman & Krueger, supra note 62, at 1251 (noting that some have argued that Skidmore requires nothing more
than “independent judgment,” while others have argued that Skidmore is “a type of deference that varies in extent from
case to case on a sliding scale”).
210 Mead, 533 U.S. at 227.
211 Martin v. Occupational Safety and Health Review Comm’n, 499 U.S. 144, 157 (1991).
212 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2267 (2024) (“Such expertise has always been one of the factors
which may give an Executive Branch interpretation particular ‘power to persuade, if lacking power to control.’”
(quoting Skidmore v. Swift & Co. 323 U.S. 134, 140 (1944))).
213 Strauss, supra note 204, at 1145 (“‘Skidmore weight’ addresses the possibility that an agency’s view on a given
statutory question may in itself warrant respect by judges who themselves have ultimate interpretive authority.”)
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agency actions promulgated through notice and comment. By making all agency interpretations
potentially eligible for treatment under Skidmore, an agency’s chance of prevailing in court on its
preferred statutory interpretation may increase compared to win rates under Skidmore prior to
Loper. This could be true because some number of interpretations promulgated through notice
and comment rulemaking will likely include more thorough explanations of agencies’
positions.214 Nonetheless, empirical analyses of Skidmore’s effect on the outcome of cases and
how courts applied it prior to Loper may provide clues as to what the application of Skidmore
may look like in the years to come.
Analyses of Skidmore Pre-Loper
The way courts applied Skidmore before Loper may help illuminate how courts might approach
Skidmore going forward. As an initial matter, Skidmore has received far less attention from the
courts in the past decades than did Chevron and may need additional development by the courts
to refine its application. Nonetheless, scholars studying judicial approaches to Skidmore were able
to identify certain trends in its application. A 2007 study of cases applying Skidmore prior to the
Loper decision identified significant variability in the ways in which courts applied Skidmore.215
The study identified two conceptions of Skidmore.216 In one conception—dubbed the
“independent judgment conception”—the Skidmore standard evaluates an interpretation as
persuasive on its merits or its rightness.217 This view tends to discount Skidmore’s contextual
factors, such as the long-standing nature of the interpretation.218 “In effect, [under this view]
Skidmore directs courts to treat the agency’s view just as it would the view of any litigant.”219
The Court’s decision in Christensen v. Harris County exemplifies the independent judgment
conception.220 In that case, the Court was called on to evaluate a Department of Labor (DOL)
interpretation of the Fair Labor Standards Act.221 Although the Court found the statute silent on
the question at hand, it began with an independent evaluation of the statute’s text to find the
“better” reading of the statute.222 The Court’s conclusion ran counter to the agency’s
214 See Kristin E. Hickman, Anticipating a New Modern Skidmore Standard, DUKE LAW JOURNAL ONLINE 10–11
(forthcoming 2025) (predicting that agency win rates under Skidmore in challenges to their rulemakings may approach
the win rates agencies enjoyed under Chevron).
215 Hickman & Krueger, supra note 62, at 1251–52. Additionally, empirical analyses prior to Loper confirm that
Skidmore results in less deference (measured by agency win rates) than Chevron did. In a different study of more than
1,000 published decisions of the federal courts of appeals decided between 2003 and 2013, the authors found that
agency interpretations prevailed 77.4% of the time when a court applied Chevron but only 56% of the time when a
court applied Skidmore. Barnett & Walker, supra note 108, at 5–6. As with Chevron, agencies prevailed at different
rates under Skidmore in different circuits. For example, agencies only won 25% of the time in the Tenth Circuit, 50%
of the time in the Sixth and Ninth Circuits, and 100% of the time in D.C. and Eighth Circuits. Id. at 44 n.228. The study
authors note that their findings on win rates in agency rule challenges under Skidmore are in line with earlier studies of
the application of Skidmore. Id. at 31, n.178. Earlier studies found affirmance rates of 55.1% in 1965, 60.6% in 1975,
and 60.4% in 2001 to 2005. Id. (citing Richard J. Pierce, Jr., What Do the Studies of Judicial Review of Agency Actions
Mean?, 63 ADMIN. L. REV. 77, 84 (2011)). It should be noted, however, that the sample size for cases only applying
Skidmore is small and accordingly may skew to the extremes in certain instances. Id. at 44 n.228.
216 Hickman & Krueger, supra note 62, at 1252–55.
217 Id. at 1252.
218 Id. 1253.
219 Id.
220 Id.; Christensen v. Harris County, 529 U.S. 576, 583 (2000).
221 Christensen, 529 at 578–79.
222 Id. at 582–86.
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interpretation.223 Only then did the Court turn to Skidmore.224 In applying Skidmore, the Court
ignored Skidmore’s contextual factors, finding the agency’s interpretation “unpersuasive”
compared with its own interpretation.225
There is some question as to whether the independent judgment conception differs from finding
that a statute has a clear meaning.226 Some see the independent judgment conception as
amounting to a court finding the statute clear.227 In these cases, Skidmore takes on a subordinate
role to other tools of statutory interpretation rather than extending respect.228 The 2007 study
found that the independent judgment conception represented the minority view in the lower
courts, with 18.9% of the cases evaluated applying Skidmore in this way.229
The 2007 study identified a second approach it dubbed the “sliding-scale conception.”230 Under
this view, application of Skidmore yields varying degrees of deference (or weight) to an agency’s
interpretation based on a court’s evaluation of Skidmore’s contextual factors.231 “The sliding-scale
model … counsels special consideration of agency interpretations that courts do not necessarily
afford to the views of other litigants.”232 Describing this approach, the Supreme Court explained
that Skidmore “has produced a spectrum of judicial responses, from great respect on one end to
near indifference at the other.”233 What differentiates it from the independent judgment
conception is that, although applying the sliding-scale approach may result in a court giving little
to no weight to an agency interpretation, the court treats the agency’s interpretation as at least
potentially deserving of greater respect than that of an ordinary litigant after evaluating
Skidmore’s contextual factors.234 The 2007 study found that the sliding-scale conception was by
far the most commonly used by the lower courts, accounting for 74.5% of all the uses of
Skidmore in the study.235 While it was the most commonly applied approach to Skidmore in the
2007 study, the study authors noted that the Supreme Court had “not offered firm rules” for the
application of Skidmore or provided an exhaustive list of factors for courts to consider in applying
Skidmore.236
223 Id.
224 Id. at 587.
225 Id.
226 Hickman & Krueger, supra note 62, at 1254 (discussing differing views of Skidmore).
227 Id.
228 Id.
229 Id. at 1271. The independent judgment conception may have had greater purchase at the Supreme Court. See, e.g.,
Christensen, 529 U.S. at 587; Yates v. Hendon, 541 U.S. 1, 17–18 (2004) (finding agency guidance document
“accords” with the Court’s interpretation of the statute based on other methods); Clackamas Gastroenterology Assocs.,
P.C. v. Wells, 538 U.S. 440, 448–50 (2003) (finding the agency’s interpretation the same as the Court’s only after
engaging in its own statutory interpretation). As noted above, the Supreme Court has, in general, been far less
deferential to agency interpretations than the lower courts have. See William Eskridge & Lauren Baer, The Continuum
of Deference: Supreme Court Treatment of Agency Statutory Interpretations From Chevron to Hamdan, 96 GEO. L. J.
1083, 1099 (2008).
230 Hickman & Krueger, supra note 62, at 1255.
231 Id. at 1255–56.
232 Id. at 1256.
233 United States v. Mead Corp., 533 U.S. 218, 228 (2001) (citing Aluminum Co. of Am. v. Central Lincoln Peoples’
Util. Dist., 467 U.S. 380, 389–390 (1984)).
234 Hickman & Krueger, supra note 62, at 1255.
235 Id. at 1271.
236 Id. at 1257. The study authors identified a number of different factors that courts used in their Skidmore analyses:
thoroughness, formality, validity, consistency, agency expertise, longevity, and contemporaneity. Id. at 1281–91. As
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Post-Loper Applications of Skidmore
As of December 2024, there are only a handful of cases addressing the application of Skidmore
since the Loper decision.237 In an early post-Loper example of the independent judgment
approach, the U.S. Court of Appeals for the Fifth Circuit in Restaurant Law Center v. Department
of Labor held that although courts should carefully consider long-standing and contemporaneous
interpretations, those considerations never have “the power to control.”238 Rather, the court found
that the statute clearly resolved the case and that Skidmore’s contextual factors could not
outweigh the clear text of the statute.239 The court’s approach is consistent with the application of
Skidmore prior to Loper.240 Nevertheless, the number of cases applying the principles set out in
Loper is still quite small. It may take some time before trends in the application of Skidmore can
be identified.
Conversely, a handful of cases decided after July 2024 appear to have approached the application
of Skidmore akin to the sliding-scale approach discussed above. In these cases, the courts,
although not always ruling in favor of the agencies, engaged with the Skidmore indicia of
persuasiveness as a way to measure the weight the agencies’ interpretations should be given. In
one case, the federal district court for the Northern District of Ohio found that a DOL regulation
had the “power to persuade” based largely on its thoroughness and validity.241 The court found the
regulation was the product of “thorough consideration” during the notice and comment process
and that the “reasoning behind the regulation is valid.”242 In another case from the U.S. Court of
Appeals for the Eleventh Circuit, the court found another DOL interpretation “persuasive”
because of its consistency over time.243 DOL, the court found, had maintained the same
interpretation of the Fair Labor Standards Act for 80 years.244 Neither case, however, addressed
whether a court must find the statute ambiguous before turning to Skidmore’s contextual factors.
noted above, prior to Chevron, courts reviewing agency interpretations would often give weight to long-standing and
contemporaneous interpretations. See THE CHEVRON DOCTRINE, supra note 41, at 134–37. Prior to Chevron, courts also
sometimes looked to whether Congress had reenacted the relevant statute after the agency had adopted an interpretation
of the statute. See, e.g., United States v. Cerecedo Hermanos, 209 U.S. 337, 339 (1908) (“[T]he re-enactment by
Congress, without change, of a statute, which had previously received long continued executive construction, is an
adoption by Congress of such construction.”); see also Kristin E. Hickman, Anticipating a New Modern Skidmore
Standard, DUKE LAW JOURNAL ONLINE at 6 (forthcoming 2025),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4941144 (discussing Skidmore factors).
237 In an evaluation of the first twenty cases citing Loper, one media source found that only one cited Skidmore and
only to hold that Skidmore did not apply. Robert LaFolla, Courts Show Little Interest in Skidmore as a Chevron
Alternative, BLOOMBERG LAW (Jul. 29, 2024), https://news.bloomberglaw.com/daily-labor-report/courts-show-littleinterest-in-skidmore-as-a-chevron-alternative.
238 120 F.4th 163, 174 (5th Cir. 2024) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
239 Id.
240 See Kristin E. Hickman, Anticipating a New Modern Skidmore Standard, DUKE LAW JOURNAL ONLINE at 8
(forthcoming 2025), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4941144 (noting that in addition to the Fifth
Circuit, the U.S. Courts of Appeals for the Second, Third, Eighth, Ninth, Federal, and D.C. Circuits have all held that
Skidmore applies when interpreting an ambiguous statute).
241 Harding v. Steak N Shake, Inc. No. 1:21-cv-1212, 2024 WL 3833341, at *8 (N.D. Ohio Aug. 15, 2024).
242 Id.
243 Perez v. Owl, Inc., 110 F.4th 1296, 1307 (11th Cir. 2024).
244 Id. Other notable cases where Skidmore was discussed include Gonzales & Gonzales Bonds & Ins. Agency, Inc. v.
DHS, 107 F.4th 1064, 1085 (9th Cir. 2024) (Johnstone, J., concurring) (arguing that the Department of Homeland
Security’s interpretation of the Vacancies Reform Act is persuasive because it was “thorough, reasoned, and
consistent”); In re MCP No. 185, No. 24-7000, 2024 WL 3650468, at *6 (6th Cir. Aug. 1, 2024) (Sutton, C.J.,
concurring) (arguing that the Federal Communications Commission’s interpretation of “common carrier” to include
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The U.S. Court of Appeals for the Ninth Circuit has also begun applying Skidmore. In an appeal
decided in September 2024, a panel of the Ninth Circuit applied Skidmore in what appears to be a
highly deferential way.245 The appeal arose from a decision of the Bureau of Immigration Appeals
(BIA) interpreting the meaning of crimes involving moral turpitude found in the Immigration and
Nationality Act.246 The Ninth Circuit concluded that BIA’s interpretation was “entitled to”
Skidmore deference.247 The court concluded that BIA’s interpretation was entitled to “deference”
because it was “thorough and well-reasoned,” “consistent with judicial precedent,” and
“consistent with the generic definition of theft.”248 The court did not determine whether BIA’s
interpretation was the best interpretation as the Supreme Court directed in Loper, nor did the
court engage in its own statutory analysis.249 The Ninth Circuit’s decision was announced in a
reported decision, which will have binding effect on future Ninth Circuit panels and the district
courts within the geographic bounds of the Ninth Circuit. It is not clear whether the Ninth
Circuit’s more deferential approach to Skidmore will be applied in future cases. More broadly, it
will take some time for any trends to emerge in how the courts are (or are not) applying Skidmore.
Delegations from Congress
Following Loper, the judiciary will also confront questions about whether and to what extent
Congress has delegated authority to an agency. If the primary question courts faced applying the
Chevron framework was whether the statute was ambiguous, one of the most important questions
courts will face under Loper is whether Congress delegated authority to the agency to resolve the
question at issue in the case. As the Supreme Court held in Loper, “[i]n a case involving an
agency, of course, the statute’s meaning may well be that the agency is authorized to exercise a
degree of discretion.”250
As discussed previously, the Court in Loper laid out a handful of examples to illustrate where
Congress had delegated certain powers to an agency. In one set of examples, the Court pointed to
statutes that expressly delegated to agencies the power to define statutory terms.251 In another set
of examples, the Court cited statutes that delegated discretionary regulatory authority to
agencies.252 In a third category, the Court explained that Congress sometimes delegates to
agencies the authority to “fill up the details” of statutory schemes.253 The Court appears to have
treated these categories as illustrative, not intending to furnish an exhaustive list of ways in which
Congress might delegate authority to an agency.254
The Court left open whether delegations must be express or whether courts could recognize
implied delegations. At least one commentator has argued that the best understanding of the
Court’s opinion is that although the Court did away with Chevron’s general presumption that
ambiguities are delegations of interpretive authority, it did not state that all delegations must be
internet service providers under the Telecommunications Act was not entitled to respect because its interpretation was
inconsistent across different presidential Administrations).
245 Lopez v. Garland, 116 F.4th 1032 (9th Cir. 2024).
246 Id. at 1037 (citing 8 U.S.C. § 1227(a)(2)(A)(ii)).
247 Id. at 1041.
248 Id. at 1040–41.
249 Id.
250 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2263 (2024).
251 Id. at 2263 n.5.
252 Id. at 2263 n.6.
253 Id. at 2263 (quoting Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825)).
254 See id.
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express.255 For example, this commentator argued, delegations to “fill up the details” “might be
discerned not from express delegation, but simply from Congress leaving essential details
incompletely specified.”256 To read Loper to require express delegations would, this argument
goes, cut against a background principle of statutory interpretation that holds that “what a
legislature may do explicitly, it may do implicitly.”257 Whether and to what extent courts will
recognize implicit delegations is yet to be seen. Post-Loper decision and as of the time of this
writing, few courts have addressed the delegation issue in any depth.258
More fundamentally, in light of the Court’s discussion of congressional delegations, some have
questioned whether the Loper decision changed much at all. One law professor has argued that
the Court’s acknowledgement that courts must continue to respect statutory delegations from
Congress has “recreated” Chevron “under a different label: ‘Loper Bright delegation.’”259 Others
have argued that something like Chevron deference may be inevitable.260 One reason that
Chevron likely took on such an important role in the lower courts is the differential capacity of
the Supreme Court and the lower federal courts to engage in independent review of statutory
interpretations advanced by agencies. While the Supreme Court hears roughly 75 cases per
year—a handful of which involve agency interpretations of law—each lower court might handle
thousands of cases per year.261 Some contended that Chevron saved lower courts time by
permitting them to engage in meaningful statutory review without having to start from scratch.262
Removing this tool, some argue, will add to the already heavy burden of the federal courts.263
That additional burden may create an incentive for the lower courts to apply Loper in ways that
255 Adrian Vermeule, Implied Delegations After Loper, YALE J. ON REG.: NOTICE AND COMMENT BLOG (Jul. 9, 2024),
https://www.yalejreg.com/nc/implied-delegations-after-loper-by-adrian-vermeule/.
256 Id.
257 Id.
258 A decision by the U.S. Court of Appeals for the Fifth Circuit evaluated a claim by the Department of Health and
Human Services (HHS) that the No Surprises Act delegated authority to the agency to prescribe a standard of review
for a system of arbitration created by the statute, but the court rejected the government’s position. Tex. Med. Ass’n, v.
HHS, 110 F.4th 762, 775 (5th Cir. 2024). The court held that Congress explicitly left how to weigh certain statutory
factors to the individual arbitrators—not to HHS. Id. HHS, accordingly, lacked the authority to issue a regulation
creating a standard of review directing arbitrators to assign certain weights to statutory factors. Id. at 776.
259 Adrian Vermeule, Chevron by Any Other Name, THE NEW DIGEST (Jun. 28, 2024),
https://thenewdigest.substack.com/p/chevron-by-any-other-name; Adrian Vermeule, The Deference Dilemma, 31 GEO.
MASON L. REV. 619, 630 (2024) (arguing prior to the Loper decision that the Court might overrule Chevron and replace
it with some kind of evaluation of delegation on a case-by-case basis). For Professor Vermeule, Chevron step two cases
can just be reconceptualized as Loper delegation cases without losing much in translation. “That is, cases that used to
be labeled as ‘deference to reasonable agency interpretations of ambiguous statutes’ will now be called ‘independent
judicial interpretation that identifies a single best answer, an answer that consists of a delegation of discretionary
authority to agencies within a given range.’” Adrian Vermeule, Chevron by Any Other Name, THE NEW DIGEST (Jun.
28, 2024) https://thenewdigest.substack.com/p/chevron-by-any-other-name.
260 See Nicholas R. Bednar & Kristin E. Hickman, Chevron’s Inevitability, 85 GEO. WASH. L. REV. 1392, 1458 (2017)
(arguing at the time that something like Loper delegation might take hold were Chevron overruled).
261 U.S. COURTS, FEDERAL JUDICIAL CASELOAD STATISTICS (2022), https://www.uscourts.gov/statistics-reports/federaljudicial-caseload-statistics-2022 (last visited Dec. 19, 2024).
262 See Kent Barnett & Christopher J. Walker, Chevron in the Circuit Courts, 116 MICH. L. REV. 1, 71 (2017); Thomas
W. Merrill, Response: Chevron’s Ghost Rides Again, 103 B.U. L. Rev. 1717, 1738 (2023); Gary Lawson, The Ghosts
of Chevron Present and Future, 103 B.U. L. REV. 1647, 1709 (2023).
263 Brief of Professor Thomas W. Merrill as Amicus Curiae in Support of Neither Party at 27, Loper Bright Enters. v.
Raimondo, 144 S. Ct. 2244 (2024) (No. 22-541).
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recreate something like Chevron, such as identifying statutory delegations or finding
interpretations that are persuasive under Skidmore (discussed above).264
Policy Discretion, Mixed Questions of Law and Fact, and Arbitrary
and Capricious Review
Even when courts determine that the best reading of a statute is that Congress delegated the
relevant question to the agency to resolve, courts will still play a role. As the Supreme Court in
Loper explained, courts must still ensure that the agency has stayed within “the boundaries of the
delegated authority and … the agency has engaged in ‘reasoned decisionmaking’ within those
boundaries.”265 The Court’s reference to “reasoned decisionmaking” and subsequent citation to
Motor Vehicles Manufacturers Association v. State Farm Mutual Automobile Insurance Co.
appears to indicate that the Court expects that where a court determines that the best reading of a
statute is that Congress delegated the issue to the agency, the court should evaluate the
reasonableness of the agency’s action pursuant to the APA’s arbitrary and capricious review
standard.266
Section 706 of the APA defines the scope of judicial review of final agency actions.267 In addition
to providing the standard of review for questions of law, which formed the basis of the Court’s
decision in Loper, the APA also provides that a reviewing court “shall hold unlawful and set aside
agency action, findings, and conclusions” that violate any of the six standards in Section 706.268
One of the mostly commonly invoked standards is the arbitrary and capricious standard, which
requires agencies when exercising discretionary policymaking authority to do so in a reasonable
way.269
The State Farm decision is credited with defining the arbitrary and capricious standard of review
in Section 706 of the APA—sometimes referred to as “hard look” review.270 In now often-cited
language, the Court held that, to survive judicial scrutiny under the arbitrary and capricious
standard, “the agency must examine the relevant data and articulate a satisfactory explanation for
its action including a ‘rational connection between the facts found and the choice made.’”271
Elaborating on this standard, the Court explained that, among other things, “an agency rule would
be arbitrary and capricious” if the agency’s explanation of its action “is so implausible that it
could not be ascribed to a difference in view or the product of agency expertise.”272 The arbitrary
264 See, e.g., Lisa Schultz Bressman, Lower Courts After Loper Bright, 31 GEO MASON L. REV. 500, 504–05 (2024)
(arguing that if Chevron is overturned, lower courts may resort to other doctrines that approximate the Chevron
framework).
265 Id. at 2265 (quoting Henry Monaghan, Marbury and the Administrative State, 83 COLUM. L. REV. 1, 27 (1983);
Michigan v. EPA, 576 U.S. 743, 750 (2015); Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29 (1983)).
266 See id.
267 See 5 U.S.C. § 706.
268 Id. § 706(2)(A)-(F).
269 Id. § 706(2)(A); State Farm, 463 U.S. at 43.
270 See, e.g., Kristin E. Hickman & Richard J. Pierce, Jr., ADMINISTRATIVE LAW TREATISE § 11.3 (7th ed. 2024)
(referring to the State Farm standard as “hard look review”); Long Island Head Start Child Dev. Servs. v. NLRB, 460
F.3d 254, 257 (2d Cir. 2006) (referring to the standard set out in State Farm as the “‘hard look’ standard”); N.W. Env’t
Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 687 n.15 (9th Cir. 2007) (referring to the arbitrary and capricious
standard as the “hard look” standard); Panhandle E. Pipe Line Co. v. FERC, 890 F.2d 435, 439 (D.C. Cir. 1989)
(same).
271 State Farm, 463 U.S. at 43 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).
272 Id.
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and capricious standard is deferential to agency policy choices.273 The Court in State Farm held
that a court may not use the arbitrary and capricious standard to substitute its judgment for that of
the agency’s.274 So long as the agency’s decision is a reasonable one, even if the court would
prefer a different policy, it must be upheld.275
The Loper decision did not disturb the arbitrary and capricious review standard announced in
State Farm.276 Chevron, and by extension Loper, applied only to agency interpretations of law,
not to exercises of an agency’s discretionary policymaking authority.277 That policymaking
authority has traditionally been evaluated pursuant to the arbitrary and capricious review
standard—it is not a question of statutory interpretation.278 As the Court in State Farm indicated,
the arbitrary and capricious standard is generally (although not always) applicable when an
agency applies its expertise to evaluate facts and form a policy from that evaluation.279 A classic
example of an agency action subject to arbitrary and capricious review is the Environmental
Protection Agency’s (EPA’s) regulation of ambient air quality that “in the judgment of the
Administrator … [is] requisite to protect the public health.”280
As the Court recognized in Loper, determining whether an agency acting pursuant to a statutory
delegation of the type noted above acted unlawfully entails two inquiries—whether the agency
acted within the scope of the delegation and whether the agency’s decision is reasonable (i.e., is
not arbitrary and capricious).281 Although the first inquiry focuses on statutory meaning, and thus
is subject to de novo review, the determination of statutory meaning does not dictate the agency’s
policy outcome—it only serves to set the parameters of the agency’s decision.282 The agency’s
ultimate decision would appear to be subject only to a reasonableness analysis.283
Along these lines, some legal scholars have argued that courts will continue their tradition of
respecting agencies’ assessments of data, collection of facts, and choices among competing policy
options. In other words, these scholars argue, courts are likely to treat questions of statutory
interpretation that “turn on facts about the world, non-legal, technical expertise, and judgments
about policy priorities, and likely outcomes” “as questions of policy judgment subject to standard
273 Id. (“The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its
judgment for that of the agency.”). But see Ohio v. EPA, 603 U.S. 279, 293–94 (2024) (finding EPA’s Good Neighbor
Plan likely to be arbitrary and capricious for not responding in a reasonable way to comments submitted during the
notice and comment period).
274 State Farm, 463 U.S. at 43.
275 Id.; FCC v. Prometheus Radio Project, 592 U.S. 414, 423 (2021) (“A court simply ensures that the agency has acted
within a zone of reasonableness and, in particular, has reasonably considered the relevant issues and reasonably
explained the decision.”). Prior to Loper, Chevron’s step two reasonableness analysis was often associated with the
APA’s arbitrary and capricious standard. See Judulang v. Holder 565 U.S. 42, 52 n.7 (2011) (equating Chevron’s
second step with the arbitrary and capricious standard).
276 See Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2263 (citing favorably to cases applying the arbitrary and
capricious standard).
277 See, e.g., Judulang, 565 U.S. at 52 n.7.
278 See Hickman & Pierce, supra note 270, at § 11.7 (discussing the differences and overlap between Chevron and State
Farm).
279 State Farm, 463 U.S. at 43.
280 42 U.S.C. § 7409(b); see, e.g., Mississippi v. EPA, 744 F.3d 1344, 1357 (2013) (applying the arbitrary and
capricious standard to a challenge to EPA’s determination to lower the National Ambient Air Quality Standard for
ozone).
281 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2265 (2024).
282 See id.
283 See id.
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arbitrary-and-capricious review.”284 The upshot for agency actions that a court determines are
subject to the arbitrary and capricious review standard is that those actions will be reviewed under
a standard often understood to be similar to deference under Chevron.285
Nonetheless, the distinction between agency decisions that are “factbound” or mixed questions of
law and fact and decisions regarding pure statutory interpretation is murky.286 The Court has not
set out a bright-line rule for how to differentiate between the two.287 The Chevron case itself
provides a useful example to illustrate the difficulty that courts may have in determining whether
a case presents a question of law application or a “naked question of law.”288 The Chevron case
concerned a provision of the Clean Air Act that authorizes EPA to regulate “stationary sources” of
pollution.289 The Court treated the case as one of statutory interpretation—about what stationary
source means—ultimately creating the Chevron two-step framework to resolve that question.290
Some have argued that Chevron could have been decided on grounds similar to those in Hearst
Publications, where the Court treated the meaning of employee as a policy determination
informed by the agency’s application of its expertise to its findings of fact.291 The regulation
challenged in Chevron does not just provide an interpretation of stationary sources but engages
with various factual scenarios regarding ownership of different facilities, geographical
distribution of facilities, and third-party industrial classifications of sources.292 In many ways, this
argument goes, EPA’s regulation at issue in Chevron is an example of the agency exercising
authority delegated to it by Congress through the application of its factfinding abilities and
expertise.293
There are important differences between Hearst Publications and Chevron that may partly
explain the different approaches the Court took in each case. Hearst Publications, like Gray, was
284 Jeffery A. Pojanowski, Without Deference, 81 MO. L. REV. 1075, 1086–87 (2016).
285 See Judulang v. Holder 565 U.S. 42, 52 n.7 (2011) (equating Chevron’s second step with the arbitrary and
capricious standard).
286 See, e.g., Bressman, supra note 134, at 8–9; Ronald M. Levin, Identifying Questions of Law in Administrative Law,
74 GEO. L.J. 1, 23 (1985) (observing generally that it is often difficult to identify questions of law and mixed questions
of law and fact); Bernard Schwartz, Mixed Questions of Law and Fact and the Administrative Procedure Act, 19
FORDHAM L. REV. 73, 73–74 (1950) (discussing the difficulty of clearly identifying the law/fact distinction); Thompson
v. Keohane, 516 U.S. 99, 110–11 (1995) (calling the fact/law distinction “slippery”). At times, courts have engaged in
both statutory interpretation and analysis and arbitrary and capricious review. For example, in Michigan v. EPA, the
Supreme Court evaluated EPA’s determination that it need not consider costs when deciding to regulate certain air
pollutants under both the Chevron framework and the arbitrary and capricious standard. 576 U.S. 743, 750–51. The
provision of the Clean Air Act at issue in Michigan empowered EPA to regulate when it found it to be “appropriate and
necessary.” Id. at 748. The Court held that “EPA strayed far beyond” the bounds of reasonableness under Chevron step
two and that, under its arbitrary and capricious review, “it was unreasonable for EPA to read [the Clean Air Act] to
mean that cost is irrelevant to the initial decision to regulate power plants.” Id. at 751, 759. See also, e.g., Arent v.
Shalala, 70 F.3d 610, 614–15 (applying arbitrary and capricious standard to review Food and Drug Administration
determination regarding regulated entities’ compliance with a federal statute); id. at 619 (Wald, J., concurring) (arguing
for the application of Chevron).
287 See Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 YALE L.J. 908, 980–81
(2017) (noting that the Court has sent “mixed signals” on how to review mixed questions of law and fact).
288 Packard Motor Car Co. v. NLRB, 330 U.S. 485, 493 (1947) (“We are not at liberty to be governed by those policy
considerations in deciding the naked question of law whether the Board is now, in this case, acting within the terms of
the statute.”); see Chevron U.S.A. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).
289 Chevron, 467 U.S. at 840.
290 Id. at 843.
291 See John F. Duffy, Chevron, De Novo: Delegation, Not Deference, 31 GEO. MASON L. REV. 541, 548–49 (2024).
292 Id. (quoting 40 C.F.R. § 51.18(j)(1)(i)–(ii) (1983)).
293 Id. (“[I]t is hard to imagine all these complex distinctions and their interrelationships can somehow be teased out of
the two-word statutory phrase ‘stationary sources.’”).
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an appeal from an agency adjudication. That is, it was an appeal from a decision the agency made
applying the relevant statute to a particular party before it. Chevron, however, was a challenge to
a rulemaking. EPA’s regulation in Chevron was generally applicable to any entity that fell within
the sweep of the regulation. It was not directed at determining whether a particular facility was a
“stationary source.” Agency adjudications may lend themselves more easily to being categorized
as presenting mixed questions of law and fact, because, by their nature, agency adjudications
apply law to the particular facts presented by the party or parties before the agency. Regulations,
although often based on factual determinations, are not typically directed at particular sets of facts
connected to particular parties.294 Nonetheless, the Court in Loper did not make this distinction
and appears to have endorsed the approach the Court took in Hearst Publications and Gray as
useful in informing the proper standard of review for mixed questions of law and fact regardless
of the form of agency action.295
Because of the similarity between Chevron step two and the arbitrary and capricious standard, the
Court had little incentive to explicitly define which issues should be reviewed under the Chevron
framework and which should be evaluated under the arbitrary and capricious standard.296 Now
that questions of law will be reviewed de novo, while exercises of policy discretion and mixed
questions of law and fact will continue to be evaluated under the deferential arbitrary and
capricious review standard, the Court may find reason to provide additional guidance on this
issue.297 Unless and until the Court refines its approach to differentiating these two spheres, it
may be hard to predict whether any specific agency action will be reviewed under the de novo
standard of review or the more deferential arbitrary and capricious standard.
Relationship with other Doctrines of Judicial Review
Major Questions Doctrine
Overruling Chevron has raised questions in the legal community over whether the major
questions doctrine is still viable. For some, by overruling Chevron, the Supreme Court
undermined the purpose of the major questions doctrine, while for others, it may still serve an
independent purpose regardless of the existence of the Chevron framework.
The major questions doctrine requires an agency to point to clear congressional authorization if it
seeks to regulate on an issue of great “economic and political significance.”298 The Supreme
Court first referred to the major questions doctrine by name in a 2022 decision, but the doctrine
has its roots in scattered cases over many years.299
294 The APA provides for a class of regulations known as regulations of “particular applicability.” 5 U.S.C. § 551(4).
Although technically considered regulations, regulations of particular applicability in many ways resemble agency
“orders” that are the products of agency adjudications. 5 U.S.C. § 551(6), (7). Orders, however, typically have
immediate effect, while regulations, particular or otherwise, have “future effect.” 5 U.S.C. § 551(4); Yesler Terrace
Comty. Council v. Cisneros, 37 F.3d 442, 448 (9th Cir. 1994).
295 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2258 (2024).
296 See Judulang v. Holder 565 U.S. 42, 52 n.7 (2011) (equating Chevron’s second step with the arbitrary and
capricious standard); see also Pharm. Research & Mfrs. of Am. v. FTC, 790 F.3d 198, 207–12 (D.C. Cir. 2016)
(analyzing a challenge under both Chevron and arbitrary and capricious review).
297 See Pojanowski, supra note 284, at 1087 (predicting that if Chevron were overruled, the distinction between
questions of law and questions of policy would be “reestablish[ed]”).
298 West Virginia v. EPA, 597 U.S. 697, 721 (2022).
299 See, e.g., FDA v. Brown & Williamson, 529 U.S. 120, 159–60; Whitman v. Am. Trucking Ass’ns, 531 U.S. 457,
468 (2001); Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014); King v. Burwell, 576 U.S. 473, 485–86 (2015);
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Until recently, the major questions doctrine was closely associated with the Chevron framework
and was often invoked as a part of the Chevron framework.300 The major questions doctrine rests
on a determination by the Court that one of the core assumptions that supported Chevron
deference—that Congress intended the agency to resolve the statutory ambiguity—was no longer
tenable.301 Where major questions are at stake, the Court has said, “there may be reason to
hesitate before concluding that Congress … intended” to delegate resolution of that question to
the agency.302
Further, while some cases suggested that the major questions doctrine might have been part of the
Chevron analysis, the Court’s approach has not been consistent. Initially, the Court invoked this
concern while applying Chevron303 to justify concluding that under the two-part test, the Court
should not defer to the agency’s construction of the statute.304 The Court then shifted its approach
slightly, holding that the fact that an agency interpretation implicates a major question renders the
Chevron framework of review inapplicable.305 In its most recent major questions cases, the Court
has invoked the doctrine without resort to Chevron at all, suggesting that the more recent version
of the doctrine operated as a principle of statutory interpretation independently from the Chevron
framework.306 In Loper, the Court reiterated that “Chevron does not apply if the question at issue
is one of ‘deep economic and political significance.’”307
The Court made this statement in the context of a discussion of the “many refinements” the Court
has made to Chevron in an attempt to “match Chevron’s presumption” regarding implicit
legislative delegation “to reality.”308 The Court identified the major questions doctrine among
these “many refinements.”309 Given these statements, the majority in Loper seemed to understand
Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 594 U.S. 758, 764 (2021) (per curiam); Nat’l Fed’n of Indep.
Bus. v. Dep’t of Lab., 595 U.S. 109, 119 (2022) (per curiam).
300 See, e.g., City of Arlington v. FCC, 569 U.S. 290, 303 (2013) (describing major questions cases as applications of
Chevron); Massachusetts v. EPA, 549 U.S. 497, 531 (2007) (invoking the major questions doctrine during Chevron
step one); Utility Air Regulatory Group v. EPA, 573 U.S. 302, 324 (2014) (invoking the major questions doctrine
during Chevron step two).
301 See, e.g., West Virginia, 597 U.S. at 723 (“[I]n certain extraordinary cases, both separation of powers principles and
a practical understanding of legislative intent make us ‘reluctant to read into ambiguous statutory text’ the delegation
claimed to be lurking there.” (quoting UARG, 573 U.S. at 324)); King v. Burwell, 576 U.S. 473, 485–86 (2015).
302 West Virginia, 597 U.S. at 768 (Kagan, J., dissenting) (quoting Brown & Williamson, 529 U.S. at 159).
303 See City of Arlington, 569 U.S. at 303 (describing major-questions cases as applications of Chevron).
304 E.g., Massachusetts, 549 U.S. at 531 (invoking the major questions doctrine during Chevron step one); UARG, 573
U.S. at 324 (invoking the major questions doctrine during Chevron step two).
305 See King, 576 U.S. at 485–86 (holding that Chevron was inapplicable and instead invoking the major questions
doctrine); Gonzales v. Oregon, 546 U.S. 243, 267 (2006) (invoking the major questions doctrine during step zero
inquiry).
306 See, e.g., Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 504 U.S. 758, 764 (2021) (per curiam) (applying
the major questions doctrine without mentioning Chevron); Nat’l Fed’n of Indep. Bus., 595 U.S. at 112 (per curiam)
(same); West Virginia, 597 U.S. at 697 (same); Biden v. Nebraska, 600 U.S. 477, 501 (2023) (same). For a more
detailed discussion of the Court’s recent major questions cases, see CRS In Focus IF12077, The Major Questions
Doctrine, by Kate R. Bowers (2022); CRS Legal Sidebar LSB10791, Supreme Court Addresses Major Questions
Doctrine and EPA’s Regulation of Greenhouse Gas Emissions, by Kate R. Bowers (2022).
307 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2269 (2024) (quoting King, 576 U.S. at 486).
308 Id. at 2268.
309 Id. at 2269. On this point the Court explained, “We have instead expected Congress to delegate such authority
expressly if at all, for extraordinary grants of regulatory authority are rarely accomplished through ‘modest words,’
‘vague terms,’ or ‘subtle device[s].’” Id. at 2269 (quoting King, 576 U.S. at 486; West Virginia, 597 U.S. at 723). Prior
to Loper some commentators argued that both the Chevron step zero doctrine and the major questions doctrine serve to
align Chevron deference more closely with those situations in which Congress has actually delegated to agencies the
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the major questions doctrine as a response to Chevron.310 With Chevron overruled, some have
questioned whether the major questions doctrine should be retained. One commentator has argued
that now that Chevron is gone, there is no longer reason to apply the major questions doctrine to
depart from applying ordinary textualist methods of statutory interpretation.311 The Court’s
approach to statutory interpretation in Loper may support this argument. The major questions
doctrine applies where a statute is less than clear,312 but if courts, following Loper, find the single
best meaning of a statute, then the major questions doctrine may not come into play, because
there is no question what the meaning of the statute is.313
The Loper opinion also provides reason to believe that the major questions doctrine may be
preserved. As already discussed, the opinion recognizes that Congress sometimes delegates to
agencies the authority to regulate pursuant to broad terms such as reasonable and appropriate.314
The Court explained that in those situations, a court’s job is twofold: ensure that the agency has
stayed within the bounds of the statutory delegation and come to its decision through “reasoned
decisionmaking.”315 It is in fulfilling this first duty where courts might turn to the major questions
doctrine. Broad grants of regulatory power subject to statutory limits such as “reasonable” may
give rise to questions over how much authority Congress delegated to the agency at the outer
margins of the agency’s statutory authority. Were an agency to rely on a broad (but not specific)
grant of power to regulate something of “vast economic and political significance,”316 the major
questions doctrine might play a role in resolving the case.
For instance, in the 2023 Supreme Court decision in Biden v. Nebraska, the Court held that the
Department of Education’s plan to cancel hundreds of billions of dollars of student loans was a
major question and that the agency could not point to clear congressional authorization for such a
plan.317 At issue in that case was a provision of the Health and Economic Recovery Omnibus
Emergency Solutions Act (HEROES Act) that authorizes the Secretary of Education to “waive or
modify any statutory or regulatory provisions” applicable to certain student loan programs.318 The
authority to interpret particular statutory provisions. See, e.g., Jonathan H. Adler, Restoring Chevron’s Domain, 81 MO.
L. REV. 983, 99–94 (2016).
310 See Loper, 144 S. Ct. at 2269. Justice Kagan’s dissent in West Virginia v. EPA points to the history of the doctrine to
make a similar point that the doctrine served only as an offramp from the Chevron framework. West Virginia, 597 U.S.
at 769–70 (Kagan, J., dissenting); see also, Loper, 144 S. Ct. at 2309 (Kagan, J., dissenting).
311 Jamie Conrad, Looks Like We Don’t Need the Major Questions Doctrine Anymore, NOTICE & COMMENT, YALE J. ON
REGUL. BLOG (Jul. 3, 2024), https://www.yalejreg.com/nc/looks-like-we-dont-need-the-major-questions-doctrine-anymore-by-jamie-conrad/. Professor Richard Pierce makes a similar argument, noting that the Court has sufficient tools to
police agencies through de novo review of questions of law and a possibly new heightened version of arbitrary and
capricious review applied in Ohio v. EPA. Richard J. Pierce, Jr., Two Neglected Effects of Loper Bright, THE
REGULATORY REVIEW (Jul. 1, 2024), https://www.theregreview.org/2024/07/01/pierce-two-neglected-effects-of-loperbright/.
312 See West Virginia, 597 U.S. at 732 (requiring “clear” congressional authorization to regulate a major question).
313 See Loper, 144 S. Ct. at 2266.
314 Id. at 2263.
315 Id.
316 West Virginia, 597 U.S. at 716, 719.
317 600 U.S. 477, 501 (2023). The Court’s major questions analysis came after the Court found that “the statutory text
alone precludes the Secretary’s program.” Id. at 506 n.9. Nonetheless, the Court explained that its major questions
analysis provided an additional ground to support its conclusion. Id. That the Court engaged in a major questions
analysis after it determined that, upon a de novo review of the statute, the text alone did not authorize the loan
forgiveness plan may indicate that even where ordinary means of statutory interpretation reveal a best meaning, the
major questions doctrine may still play a role.
318 Id. at 494 (quoting 20 U.S.C. § 1098bb(a)(1)). For more information on this case and the HEROES Act in general,
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Court called the magnitude of the loan cancellation “staggering by any measure” and held that the
plan was of the kind of politically and economically significant actions that mark a major
question.319 As such, the Court held, “it is ‘highly unlikely that Congress’ authorized such a
sweeping loan cancellation program ‘through such a subtle device as permission to “modify.”’”320
To come to this conclusion, the Court relied, in part, on the Secretary’s past uses of the HEROES
Act.321 The Court surveyed the Secretary’s past invocations of power to waive or modify student
loans and explained that past waivers were “modest and narrow in scope.”322 These modest and
narrow uses of the waive or modify authority, the Court reasoned, supported the Court’s view that
Congress likely did not delegate the authority to cancel student loans generally.323
Although Nebraska was decided prior to Loper, it may provide an insight into where the major
questions doctrine may still play a role—instances where agencies acting under broad, but not
specific, statutory authorizations attempt to regulate in a novel way that a court finds to be
economically or politically significant.
Auer (Kisor) Deference
Overruling Chevron has also raised questions about the viability of other deference doctrines,
such as Auer deference.324 Auer deference closely mirrors Chevron but applies to an agency’s
reasonable interpretations of its own ambiguous regulations.325 This form of deference originated
in a 1945 Supreme Court case Bowles v. Seminole Rock & Sand Co., which concerned the proper
interpretation of a maximum price regulation issued by the Office of Price Administration.326 o
determine the proper interpretation of the regulation, the Court explained that it “must necessarily
look to the administrative construction of the regulation if the meaning of the words used is in
doubt.”327 Where that is the case, “[t]he ultimate criterion is the administrative interpretation,
which becomes of controlling weight unless it is plainly erroneous or inconsistent with the
regulation.”328 It is this formulation that later found its way into the 1997 Supreme Court case
authored by Justice Scalia, Auer v. Robbins, from which the deference doctrine takes its name.329
see CRS Legal Sidebar LSB10997, Supreme Court Invalidates Student Loan Cancellation Policy Under the HEROES
Act, by Edward C. Liu and Sean M. Stiff (2023); CRS Report R47505, Student Loan Cancellation Under the HEROES
Act, by Edward C. Liu and Sean M. Stiff (2023).
319 Nebraska, 600 U.S. at 502.
320 Id. at 496 (quoting MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 231 (1994)).
321 Id. at 495.
322 Id. at 501. One of the contextual factors courts look to in applying Skidmore is the consistency of the agency’s
interpretation over time. See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
323 Nebraska, 600 U.S. at 502.
324 See Cass R. Sunstein, The Consequences of Loper Bright, 2 n.6 (Harv. Pub. L. Working Paper, Paper No. 24-29),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4881501 (noting that Auer deference sits “uneasily” with Loper);
Anthony G. Amsterdam and James S. Liebman, Loper Bright and the Great Writ (with Appendices), COLUM. HUMAN
RIGHTS L. REV. (forthcoming Feb. 2025) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4991093 (questioning
whether federal court deference to state court interpretations of the U.S. Constitution in habeas corpus cases will
continue after Loper).
325 Auer v. Robbins, 519 U.S. 452, 461 (1997) (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
359, (1989)).
326 325 U.S. 410, 414 (1945).
327 Id.
328 Id.
329 See Auer, 519 U.S. at 461.
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In addition to mirroring Chevron’s structure, Auer also shares a similar foundation. The Court
explained that it “presume[s] that the power authoritatively to interpret its own regulations is a
component of the agency’s delegated lawmaking powers.”330 As with Chevron, the Court assumed
that Congress would have wanted the agency rather than a court resolving ambiguities because of
an agency’s “unique expertise and policymaking prerogatives,” ability to conduct investigations,
and political accountability.331
In 2019 the Supreme Court revisited—and on some accounts narrowed—Auer deference in Kisor
v. Wilkie.332 The petitioners asked the Court to overrule Auer, but in an opinion written by Justice
Kagan, the Court “restate[d]” and “somewhat expand[ed]” on the principles governing the
application of Auer.333 The Court acknowledged that it had at times sent mixed signals regarding
how to apply Auer, may have inadvertently suggested that deference was “reflexive,” and in some
cases had applied it “without significant analysis of the … regulation.”334
The Supreme Court took the opportunity to remind lower courts that they should not be too quick
to find ambiguity in a regulation. “[T]he possibility of deference can arise only if a regulation is
genuinely ambiguous. And when we use that term, we mean it—genuinely ambiguous.”335 “The
core theory of Auer,” the Court held, “is that sometimes the law runs out.”336 Courts must first
resort to all of the “traditional tools of construction” before declaring a regulation ambiguous.337
A court “cannot waive the ambiguity flag just because it found the regulation impenetrable on
first read.”338 The Court stressed that a court must use every tool—including the text, structure,
history, and purpose of the regulation—before determining that there is no single right answer.339
Even after a court finds a regulation ambiguous, the Court clarified that not all reasonable
interpretations “are entitled to deference.”340 Auer, like Chevron, presumes that Congress would
want an agency rather than a court to resolve ambiguities in regulations, but the Court stressed
that “such a presumption cannot always hold.”341 The Court then went on to provide an
illustrative list of factors that indicate that deference is appropriate.342 The interpretation must
represent the agency’s official position, implicate its substantive expertise, and be the product of
“fair and considered judgment.”343 In the Court’s view, if these guardrails are properly observed,
Auer deference “often” does not apply.344
330 Martin v. Occupational Safety and Health Rev. Comm’n, 499 U.S. 144, 151 (1991) (citing Ford Motor Credit Co. v.
Milhollin, 444 U.S. 555, 566, 568 (1980)).
331 Id.; Kisor v. Wilkie, 588 U.S. 558, 571–72 (2019).
332 588 U.S. at 573; Peter L. Strauss, Kisor, Gundy, Mead Chevron, Skidmore, Hearst, NOTICE & COMMENT, YALE J. ON
REGUL. BLOG (Jul. 16, 2019) https://www.yalejreg.com/nc/kisor-gundy-mead-chevron-skidmore-hearst-by-peterstrauss/ (Kisor “distinctly constrain[ed]” the reach of Auer).
333 Kisor, 588 U.S. at 574.
334 Id.
335 Id. at 573.
336 Id. at 575.
337 Id. 575 (quoting Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843, n.9 (1984)).
338 Id.
339 Id.
340 Id. at 573.
341 Id. at 576.
342 Id. at 577–79.
343 Id. at 578–79 (quoting Auer v. Robbins, 519 U.S. 452, 462 (1997)).
344 Id. at 580.
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Despite Kisor’s refinement of Auer, its continued viability after Loper is a serious question. The
Loper decision rested on an interpretation of Section 706 of the APA.345 That same provision of
the APA directing courts to “decide all relevant questions of law” applies equally to challenges to
agency interpretations of their own regulations.346 Professor Cass Sunstein has observed that
“Loper Bright sits (umm, errr) uneasily with Kisor.”347 The Kisor opinion itself, he notes, is
“essentially identical” to Justice Kagan’s dissent in Loper.348 It would, in his estimation, be
“awkward” to revisit Kisor so soon after it was decided but equally awkward for the Court to
preserve Auer deference.349 That awkwardness stems primarily from the similarities between the
presumptions underpinning Chevron that the Loper decision swept away and those that underpin
Auer—that in many cases Congress would have wanted agencies to resolve ambiguities in their
own regulations.350 If the presumption that statutory ambiguities are implicit delegations of
interpretive authority violates Section 706 of the APA, then it is possible that the same
presumption for regulations also violates the APA. Whether the Court takes up this issue in the
future, however, is an open question.351
Further Litigation: Prior Chevron Cases
Although the Supreme Court overruled Chevron, it appears to have preserved the holdings in
cases that were decided pursuant to the Chevron framework prior to Loper.352 In the briefing of
the case and during oral argument, the litigants and some of the Justices discussed the fate of
cases decided at Chevron step two.353 As explained above, at Chevron step two, a court must defer
to an agency’s reasonable interpretation of an ambiguous statute.354 In such a case, a court has not
made a specific ruling on what the statute means—it has left that determination to an agency in
light of the court’s finding at step one that the statute is ambiguous.355 At oral argument, some of
the Justices questioned the litigants about whether these step two decisions would still be
considered binding if Chevron were overruled.356 Counsel for the petitioners argued that
overruling Chevron would not disturb these cases, because what the court had found at step two
345 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2265 (2024).
346 See 5 U.S.C. § 706.
347 Sunstein, supra note 324, at 2 n.6.
348 Id.
349 Id.
350 Compare Kisor, 588 U.S. at 576 (“[W]e give Auer deference because we presume, for a set of reasons relating to the
comparative attributes of courts and agencies, that Congress would have wanted us to.”), with Loper, 144 S. Ct. at 2265
(Ambiguity does not “necessarily reflect a congressional intent that an agency, as opposed to a court, resolve the
resulting interpretive question.”).
351 In a decision of the U.S. Court of Appeals for the Fourth Circuit issued shortly after Loper, the court recognized that
Loper “calls into question the viability of Auer deference,” but because Loper addressed only agency interpretations of
federal statutes—not regulations—the court would apply Auer. United States v. Boler, 115 F.4th 316, at 322 n.4 (4th
Cir. Aug. 23, 2024) (amended Oct. 8, 2024).
352 Loper, 144 S. Ct. at 2273.
353 See Brief for Respondents at 31, Loper Bright Enters. v. Raimondo, 143 S. Ct. 2244 (2024) (No. 22-541); Transcript
of Oral Argument at 59:8-61:7, Relentless, Inc. v. Dep’t of Commerce, 144 S. Ct. 2244 (2024) (No. 22-1219).
354 Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc. 467 U.S. 837, 843–44 (1984).
355 Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005) (citing Chevron, 467 U.S.
843-44 (Allowing “a judicial precedent to foreclose an agency from interpreting an ambiguous statute, as the Court of
Appeals assumed it could, would allow a court's interpretation to override an agency’s. Chevron’s premise is that it is
for agencies, not courts, to fill statutory gaps.”).
356 Transcript of Oral Argument at 59:8-61:7, Relentless, Inc. v. Dep’t of Commerce, 144 S. Ct. 2244 (2024) (22-1219).
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was that an agency’s interpretation was “lawful.”357 The Court appears to have adopted this
argument in its opinion, holding that “we do not call into question prior cases that relied on the
Chevron framework. The holdings of those 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.”358
The Court held that its decision to overturn Chevron is not itself a reason to overturn a prior case
finding an agency’s interpretation “lawful” pursuant to step two of Chevron.359 Rather, litigants
will have to make an additional showing that the older decision should be overturned on other
grounds.360 The Loper majority did not elaborate on what that additional showing could or should
be.361 It is possible that the additional showing could be that the agency’s interpretation of the
statute upheld in the prior case as “reasonable” under step two of Chevron is at variance with the
present-day court’s view of the “best” interpretation of that statute.
Despite the Court’s holding, questions are likely to remain regarding the circumstances in which a
court can overturn a prior decisio
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