What You Need to Know in a Minute or Less

In Loper Bright Enterprises v. Raimondo, the US Supreme Court overturned the 40-year-old doctrine established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., which had directed federal courts to defer to an agency’s reasonable interpretation of an ambiguous statute that the agency administers. Chevron deference was a cornerstone of modern administrative law—a pragmatic presumption that ambiguities found in statutes reflected Congress’ implicit desire to delegate legislative power to agencies to fill in the details. This power sometimes meant that a statute could legitimately be read to have multiple meanings, depending on which administration was reading it.

Reviewing courts would often uphold agencies’ shifting interpretations so long as they were found to be reasonable readings of the statute. Loper changed that. In summer 2024, Loper rejected the Chevron worldview and declared that statutes have a single, fixed “best meaning” and that it is the court’s job to figure it out. A year later, consistency in application remains a moving target.

In a minute or less, here is what you need to know.

Bold Headlines, Cautious Courts, and Unanswered Questions

Loper spurred intense speculation in the popular press about the survival of the administrative state and the ongoing ability of federal agencies to regulate important matters affecting public health and safety. Beyond the rhetoric, however, many believed it would take years before Loper’s impact would be fully appreciated and that, in the meantime, regulated parties should direct their efforts at obtaining clearer statutes, make arguments based on statutory construction (rather than deference to agency expertise), and look for Loper loopholes where Congress expressly delegated gap-filling or definitional authority to agencies. In the meantime, the US Supreme Court and courts of appeals began sending back cases for reconsideration, leaving it to lower courts to apply Loper in individual matters.

Now one year after the decision, several takeaways have emerged as a result.

Not a One-Size-Fits-All Decision

Thus far, the Loper decision has not caused the pendulum to swing clearly in any one direction; some agency decisions are being struck down while others are being upheld.

On one hand, courts have not been shy about overturning significant rules that appear to reflect agencies’ wishful thinking rather than a clear grounding in statutory text. In this vein, courts have applied their newfound freedom to strike down rules like the US Department of Labor’s (DOL) tip-credit rule—because the agency’s complex interpretation of “occupation” ran astray of the Fair Labor Standards Act—and the US Department of the Treasury’s sanctions against cryptocurrency software—because the agency reached too far in construing sanctionable “property” under the International Emergency Economic Powers Act to include immutable smart contracts.

On the other hand, when agency rules clearly flow from statutory text or expressly delegated functions, courts are continuing to uphold them. For example, following Loper remands, courts have affirmed rules like the Internal Revenue Service’s whistleblower definitions—upheld as consistent with the ordinary meaning of the Internal Revenue Code—and the DOL’s environmental, social, and governance investing rule—found appropriate under the Employee Retirement Income Security Act of 1974. 

This nuanced reality reflects that Loper is an in-the-weeds decision, not a one-size-fits-all application. How Loper affects any given case will depend on the statutory framework at issue, as well as circuit precedent on that framework, which Loper maintained will continue to deserve stare decisis treatment. 

No More Flip-Flops

One category of cases in which Loper has had a predictably clearer impact is addressing regulations that have been subject to vacillating interpretations over time by agencies that have expressly exploited statutory ambiguity. When those regulations make it to court, Loper demands a reckoning whereby the court determines the statute’s permanent meaning, precluding future agency flip-flops. 

This feature of Loper came into relief when the US Court of Appeals for the Sixth Circuit definitively struck down the Federal Communications Commission’s net neutrality rules, after the agency had repeatedly switched positions on whether internet services qualified as a highly regulated telecommunications service. The court held that the single best reading of the Communications Act of 1934 required internet services to be lightly regulated as information services. 

Deference Not Dead

While Loper put an end to agencies usurping the judicial function, agencies still have great ability to influence the law. Since Loper, the US Supreme Court has continued to rely on agencies’ contemporaneous and long-standing practices as an aid in resolving statutory ambiguity. For example, the US Supreme Court did so when it upheld the Bureau of Alcohol, Tobacco, Firearms and Explosives’ regulation of ghost guns as consistent with the agency’s prior practice, as well as when it upheld the Secretary of the US Department of Health and Human Services’ authority to appoint members of the US Preventive Services Task Force as consistent with agency practice that had long continued without objection from Congress.

The takeaway: A year after Loper, agencies are continuing to press for their interpretations of the law, and stakeholders are strategically using the courts to get legal clarity. While much of this activity has followed a familiar path, the stakes have never been higher, as Loper now promises to cement the victor’s view. 

Our administrative law and appellate practitioners regularly assist clients in assessing regulatory actions and legal risk in light of evolving judicial precedents.