Back in June, the Supreme Court issued a final ruling in Loper Bright Enterprises v. Raimondo, holding that the Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous; and thereby overturning the decision in the landmark 1984 case, Chevron v. Natural Resources Defense Council.
As we outlined in the aftermath of Loper Bright’s reversal of Chevron, the Chevron doctrine served as a foundational piece of administrative law for over 40 years and many were shocked by its reversal, which shifted the power to interpret Congress’ intent in legislation granting authority to federal agencies from those agencies to federal courts. Those opposing the reversal have argued that subject matter experts at federal agencies are better suited to make out Congress’ intent than federal judges. On the other hand, proponents of the Loper Bright ruling have argued that letting agencies make policy interpretations led to constant uncertainty.
In any case, federal agencies no longer have the ability to use discretion in carrying out would could be an unclear directive from Congress. But almost equally unexpected as Chevron’s reversal is the fact that we’re seeing the effects of Loper Bright much sooner than many expected. Lower court judges have already cited the case to prevent implementation of the Biden Administration’s rules on overtime pay and health care discrimination, and has been cited in a over 100 cases to challenge a wide range of regulations.
ProPublica has compiled a comprehensive summary of some of the lower court cases in which Loper Bright has been cited by plaintiffs, including questions regarding federal overtime pay, airline fee transparency, gun show background checks, and more. Some of these cases could be decided before the end of the year, building the foundation for the post-Chevron regulatory landscape.
In a case decided just after Loper Bright, Corner Post, Inc. v. Board of Governors of the Federal Reserve System, the Court also ruled that the statute of limitations for challenging agency rulemakings begins when the plaintiff is harmed, not when the rule is issued. This essentially allows anyone to seek judicial review of agency rules at any time - even if the rule was decades ago.
While the Loper Bright and Corner Post rulings are undoubtedly wins for conservative efforts to rein in big government and that an endless flood of litigation could hamstring federal agencies by stripping and limiting their authority, it’s important to remember that the ruling can cut both ways; shaping the authorities of the federal government in ways that benefit both liberal and conservative agendas.
A distinct consequence of these rulings should be that Congress works to make intent as clear as possible in drafting legislation that grants new authority to agencies. To properly follow through on this will require more resources in personal offices, on committees, and for legislative counsel in both chambers. With the current congress coming to an end, it’ll be important to keep an eye on the extent to which bill and report language is narrowed to avoid unintended judicial pushback. Either way, in working with congressional offices on legislation in the 119th Congress, stakeholders should do extra due diligence in how early drafts are worded and how intent is reflected in language creating or impacting agencies.
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