Rewriting the Playbook: A Guide to Congressional Action in the Wake of Loper Bright

Abstract

In 2024, the Supreme Court issued a landmark ruling in Loper Bright Enterprises v. Raimondo that fundamentally revises how courts interpret agency regulations. The court’s ruling overturned Chevron deference, a forty-year-old precedent requiring courts to defer to an agency’s interpretation of silent or ambiguous statutory language. With its ruling in Loper Bright, the Supreme Court establishes an anti-deferential regime in which courts will now take a more active role in interpreting whether agencies' actions are clearly authorized by Congress.

The goal of this thesis is to analyze how Congress can respond to this new regime of judicial review so as to ensure that its legislative intent is respected as courts review agency rules. First, the thesis undertakes a historical analysis to understand the relationship between Chevron and Congress, as well as the implications of overturning Chevron. Second, the thesis surveys the standards of judicial review that state courts across the U.S. apply to agency regulations. This review shows that Chevron is not the default standard of review used by state judiciaries throughout the U.S. Instead, a majority of state courts apply a deferential standard other than Chevron. Third, the thesis includes three in-depth case analyses from two U.S. states and Australia, another advanced federal democracy. These case studies offer insight into how less deferential approaches to judicial review of agency rules can work in practice. Finally, a thorough assessment of all current federal proposals for responding to the new regime of judicial review is presented.

The key findings present new insights that contribute to the ongoing Loper Bright discussion, offering perspectives not previously identified in existing literature. Based on my analysis of other jurisdictions, I argue that the federal government is likely to regress to a previous framework known as Skidmore weight in reviewing agency rules, given that the Supreme Court failed to articulate a clear alternative framework in Loper Bright. Finally, best practices for future legislation should center on establishing statutory clarity over statutory specificity. The thesis concludes with a discussion of policy recommendations divided into short-term and long-term responses.