Chevron Is Dead, But Its Ghost Still Regulates
The Supreme Court buried the Chevron deference doctrine on June 28, 2024. In Loper Bright Enterprises v. Raimondo, Chief Justice Roberts wrote for a six-justice majority that federal courts may no longer defer to agency interpretations of ambiguous statutes. The old rule, born in 1984 from Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., had let federal bureaucracies fill statutory gaps with the force of law. Its death was overdue. Yet sixteen months later, agencies are learning to live without it, and too many lower courts are helping them.
The problem is not the holding. The problem is the aftermath. Agencies have shifted from claiming statutory ambiguity to claiming that statutes are not ambiguous at all, only conveniently broad. The Securities and Exchange Commission spent 2024 and 2025 defending its climate-disclosure rule not on Chevron grounds but on the theory that Congress had already delegated vast authority over securities markets in the Securities Exchange Act of 1934. The Eighth Circuit rejected that theory in April 2025 and vacated the rule. The strategy, however, remains alive in other agencies.
Regulators are also turning to interpretive rules, guidance documents, and informal enforcement threats. These devices lack the procedural safeguards of formal rulemaking under the Administrative Procedure Act, but they still shape behavior. A bank that receives a supervisory letter knows the cost of defiance even if the letter never becomes a regulation. Chevron may be gone, but fear still governs.
Congress deserves blame too. It passes statutes with deliberate vagueness so members can take credit for popular goals while leaving agencies to absorb the backlash for unpopular means. That cowardice created Chevron in the first place. Ending the doctrine will not end the incentives that produced it.
Auer and Skidmore Give Agencies a Second Life
Conservatives who celebrated Loper Bright must now finish the job. The Court has narrowed but not abolished Auer deference, the cousin of Chevron that tells courts to defer to an agency's interpretation of its own regulations. In Kisor v. Wilkie, decided 5-4 in 2019, the Court retained Auer while adding a multi-step threshold test. That test sounds rigorous. In practice, it gives judges an off-ramp from their duty to say what the law means.
Skidmore deference is subtler but no less damaging. Under Skidmore v. Swift and Co., a 1944 decision, courts may give weight to agency views based on their power to persuade. It sounds modest. It is not. A judge who treats an agency's brief as persuasive authority has still outsourced interpretive judgment to the executive branch. The difference between Chevron and Skidmore is often the difference between a bow and a nod. Both are acts of deference the Constitution does not require.
The constitutional text places the legislative power in Congress. Article I does not say Congress may delegate lawmaking to commissions, boards, or secretaries. The Court's nondelegation doctrine has been weak since the New Deal era, but Justice Gorsuch and Justice Thomas have kept the question alive. Justice Alito, concurring in Loper Bright, warned that the major questions doctrine remains necessary precisely because agencies still seek vast authority over the economy. The justices understand that overturning one doctrine is not the same as restoring the separation of powers.
Lower courts have also developed their own workarounds. Some judges now claim that agency interpretations are the best evidence of statutory meaning even without formal deference. Others invoke "practical" considerations about administrative capacity. These moves preserve Chevron's substance while abandoning its name. The Supreme Court should not tolerate them.
Originalism Demands Judges Do the Hard Work
The best path forward is for the Court to apply the original meaning of the Constitution without apology and without shortcuts. When a statute is genuinely ambiguous, the answer is not to let the agency choose from a menu of convenient policy options. The answer is for the court to choose, using ordinary tools of interpretation. If Congress disagrees, Congress can legislate. That is how a republic is supposed to function.
Lower courts must lose their habit of treating agency expertise as a substitute for statutory text. The Environmental Protection Agency cannot redefine "waters of the United States" to cover dry ditches because wetlands are important. The Department of Labor cannot rewrite overtime rules by reclassifying millions of workers. The Federal Communications Commission cannot treat broadband as a public utility unless Congress actually says so. Each of these battles has reached the Court in recent terms, and each shows the same institutional temptation to rule by regulation.
The Roberts Court has the votes to stop it. In West Virginia v. EPA in 2022, the Court used the major questions doctrine to block a regulatory scheme that would have transformed the nation's energy grid. In Loper Bright in 2024, it removed Chevron from the administrative-law toolbox. The next term should bring Auer and Skidmore back to the bench. Originalism is not a boutique theory for law reviews. It is the only method that keeps lawmaking where the Constitution put it.
The Framers separated powers because they feared concentrated authority. Agencies today concentrate legislative, executive, and judicial power in ways that would have alarmed Madison. The Supreme Court took a major step in 2024. It should not stop now. The ghost of Chevron still walks the halls of Washington. Only the justices can lay it to rest.
