The Supreme Court Should Finish What It Started in Loper Bright

Did Loper Bright Actually Change Anything?

On June 28, 2024, the Supreme Court decided Loper Bright Enterprises v. Raimondo and Relentless, Incorporated v. Department of Commerce, ending the forty-year regime of Chevron deference. The doctrine had required courts to defer to an agency's reasonable interpretation of an ambiguous statute. Within twelve months, the decision was cited in more than 1,200 lower-court opinions, according to a running tally maintained by the Institute for Justice. The change is real. But the doctrine's funeral has not produced the clean revival of judicial judgment that many expected.

What Are the Lower Courts Doing Now?

Federal judges are improvising. Without Chevron, some circuits have reached for older deference doctrines such as Skidmore respect, which gives weight to agency experience and consistency but does not command deference. Others have simply substituted their own statutory readings without explaining what role, if any, agency expertise should play. The result is a patchwork. The Fifth Circuit and the D.C. Circuit have produced sharply different approaches to the same administrative statutes in the first year after Loper Bright.

The problem is most visible in environmental and labor cases. The Environmental Protection Agency's power-plant rules under Section 111 of the Clean Air Act face challenges in multiple circuits. The Department of Labor's independent-contractor rule, finalized in January 2024, produced conflicting district-court rulings before the agency withdrew it. The Occupational Safety and Health Administration's heat-stress standard, proposed in July 2024, is now in litigation in the Eighth Circuit. In each case, judges must decide not just what the statute means, but how much attention to pay to the agency's technical analysis.

Why Did the Court Leave Skidmore Standing?

Chief Justice Roberts's majority opinion in Loper Bright emphasized that courts were the final interpreters of law. He did not, however, banish agency views from the courtroom. The Court cited Skidmore v. Swift and Company, a 1944 decision, as one source of appropriate respect for agency judgments. That left the door open. Skidmore respect is famously vague. It tells courts to consider the thoroughness of an agency's reasoning, the validity of its logic, and its consistency with earlier positions. Those factors are useful but do not add up to a rule.

Justice Thomas, joined by Justice Gorsuch, wrote separately to note that deference doctrines may raise separation-of-powers concerns even when framed as respect rather than command. Justice Kagan's dissent warned that courts lack the technical competence to second-guess agencies on matters such as fisheries management and public health. Both sides identified the same unresolved tension. The Court kicked the methodological can down the road.

What Should the Justices Clarify?

The Court should take a case soon that lets it define the post-Chevron framework. Three principles would help. First, statutory text controls. If Congress spoke clearly, the inquiry ends. Second, agency expertise matters as evidence, not as authority. Courts can consult agency scientific or technical findings under the Federal Rules of Evidence, but they should not treat those findings as presumptively correct. Third, old agency interpretations that predate a statute's enactment should carry little weight, because Chevron itself was invented in 1984 and distorted decades of agency practice.

This framework would preserve what was valuable in administrative knowledge without surrendering the judicial duty to say what the law is. It would also align with Article III. Federal judges swear an oath to decide cases and controversies under the Constitution and laws of the United States. They do not swear an oath to defer to the bureaucrat who happens to sit in the relevant regional office.

Which Cases Could Force the Issue?

Several pending petitions present the opportunity. A challenge to the Securities and Exchange Commission's climate-disclosure rule is pending at the Court, though the SEC has stayed the rule pending review. A challenge to the Federal Communications Commission's restoration of net-neutrality rules, reinstated in April 2024, is working through the Sixth Circuit. A challenge to the Department of Education's Title IX regulations, which redefine sex to include gender identity, is already before the justices on a separate administrative-procedure theory. Any of these cases could become the vehicle for a clean post-Chevron statement.

The Court should choose carefully. The best vehicle is one in which the statute is genuinely ambiguous, the agency's interpretation is technical rather than nakedly political, and the lower courts have split. That profile would let the justices articulate general principles without appearing to target a single administration. It would also answer the critics who claim Loper Bright was merely a deregulatory weapon rather than a restoration of constitutional structure.

What Is the Real Stakes?

The administrative state did not disappear on June 28, 2024. It adapted. Agencies now draft rules more carefully, litigate more aggressively, and cite Skidmore factors with the enthusiasm of a law student padding a memo. The equilibrium is unstable. Congress could solve much of this by writing clearer statutes, but Congress rarely does. That leaves the Court with the task it claimed in Loper Bright: judging.

A year is long enough to wait. The justices should grant a case this fall, hear argument in early 2027, and give lower courts a coherent method for the post-Chevron world. The Republic will not collapse if judges do their jobs. It might, however, collapse if they refuse.