Chevron Is Gone, and Here Is What Loper Bright Changed for Everyone

Picture a courtroom in which one of the parties to the lawsuit also gets to write the rulebook, and when the two sides disagree about what the rulebook means, the judge is told to side with the party that wrote it, so long as its reading is "reasonable." You would call that rigged. You would not let your kids play Monopoly that way. And yet for forty years, that was close to how American courts handled disputes between private citizens and federal agencies over what a law means.

The rule had a name, and the name was Chevron. In June 2024 the Supreme Court threw it out. If you run a small business, farm land, drive a truck, fish for a living, or simply pay for products made under federal rules, this ruling affects you more than most of what you will read in the paper. Let me explain it without the legalese.

What Chevron said

The case was Chevron U.S.A. v. Natural Resources Defense Council, decided on June 25, 1984. The dispute was technical. Congress had written the Clean Air Act to require permits for new or modified "stationary sources" of air pollution in areas that had not met air-quality standards. The Reagan administration's EPA read that phrase to let a plant treat all its pollution-emitting equipment as a single "bubble," so that a change in one part of a plant didn't trigger the permit if total emissions didn't rise. Environmental groups sued, saying the statute didn't allow that reading.

The Supreme Court, in an opinion by Justice John Paul Stevens, upheld the EPA, and it created a two-step test that every law student learned.

1. Step one. Has Congress directly spoken to the precise question? If the statute is clear, the court enforces it and that's the end of the matter.
2. Step two. If the statute is silent or ambiguous, the court asks only whether the agency's reading is a permissible one. It need not be the best reading, only a reasonable one.

Note the irony. When Chevron was decided it was a win for a Republican administration that wanted less strict regulation, and conservatives often cited it approvingly as an answer to activist judges who substituted their own policy views for the agency's. Justice Antonin Scalia was one of the doctrine's most prominent defenders on the Court. Over time, as the federal bureaucracy grew and administrations of both parties pushed legal theories to the limit, a different view took hold. By the 2010s many conservative judges, including Justice Neil Gorsuch in his time on the appeals court, were arguing that Chevron had let agencies grab power that the Constitution assigns to Congress and the courts.

The law Chevron seemed to ignore

Here is the heart of the argument against Chevron, and it begins with a statute passed in 1946. The Administrative Procedure Act is the basic law governing how federal agencies work. Section 706 tells a reviewing court to decide all relevant questions of law and to interpret constitutional and statutory provisions. Read that again. The text says the court decides. It does not say the court decides unless the agency has a reasonable alternative view.

Add the older principle from Marbury v. Madison in 1803: it is the judiciary's job to say what the law is. See Marbury v. Madison and the Power the Supreme Court Gave Itself in 1803. A judge asked what a law means is doing the oldest part of the job. The critics of Chevron said that when a court defers to an agency, it hands that job to one of the parties in the case, and the party is the government. Ordinary people in a lawsuit against a federal agency started the contest a step behind.

Loper Bright: the fishermen's case

The vehicle for overruling Chevron was a case about herring. Loper Bright Enterprises v. Raimondo involved family-owned fishing boats off the New England and Mid-Atlantic coasts. A federal law, the Magnuson-Stevens Act, lets the National Marine Fisheries Service require observers on fishing vessels to collect data. The statute expressly lets the government make industry pay for monitors in a few specific fisheries, but it says nothing of the kind about Atlantic herring. A rule for that fishery nonetheless required the fishing companies themselves to pay the salaries of the monitors who watch them work, a cost the government's own estimate put at as much as 20 percent of a boat's revenue. The boat owners argued that Congress never authorized that bill.

The lower courts, relying on Chevron, said the statute was ambiguous on the point and the agency's reading was reasonable, so the agency won. The fishermen took the case up, and the Supreme Court agreed to hear it along with a companion case, Relentless, Inc. v. Department of Commerce, involving the same kind of rule.

On June 28, 2024 the Court ruled for the fishermen. Chief Justice John Roberts wrote the opinion, and the vote in Relentless was 6 to 3. In Loper Bright itself, Justice Ketanji Brown Jackson did not take part because she had considered the case earlier as an appeals-court judge. The opinion overruled Chevron outright. Courts must exercise their independent judgment about what a statute means and may not defer to an agency's interpretation merely because the statute is ambiguous.

What the Court said, and what it did not say

This is where careful reading matters. Folks on both sides have overstated the case. Here are four things the decision does and does not do.

1. Courts decide. When a statute is ambiguous, a court uses the ordinary tools of interpretation, the text, structure and history, and reaches its own best reading. An ambiguity is not a gift to the government.
2. Agencies still matter. The Court restated an older doctrine from Skidmore v. Swift & Co. (1944): a court may give weight to an agency's interpretation based on how thorough its reasoning is, how consistent it has been and how persuasive it is. That is respect earned, not deference owed. An expert agency that has applied a statute the same way for decades will still have a hearing.
3. Congress can delegate, expressly. If Congress writes a statute that gives an agency discretion, for example by using words like "appropriate" or "reasonable" or by telling the agency to fill in details, a court's job is to stay within the limits Congress set. The Court did not cancel that.
4. Old cases stay put. The Court said that holdings from earlier cases that relied on Chevron remain good law. Lawyers can't reopen everything. Past cases are protected by the ordinary respect courts give to their own precedents. That limits the shock.

So what changed? The default flipped. Before: if the law is unclear, the agency wins. After: if the law is unclear, the court decides what it means, and the agency's view is one voice among others.

The steelman: why defenders of Chevron cared

Let me give the other side its best case, because it is a serious one. Justice Elena Kagan, in dissent, made it.

One. Modern statutes are long, technical and full of gaps. Two. Congress cannot foresee every question, and a lot of what an agency does is fill those gaps with scientific and technical judgment. Three. Federal judges are generalists, not chemists or economists. Four. Chevron kept the law uniform across the country, because it sent the first answer to a single agency rather than a patchwork of circuit courts. Five. Therefore the Court, in her view, was taking power that Congress had given to the experts and keeping it for itself.

That is a real argument and worth respecting. Here is why I think it fails, in three points.

First, expertise belongs in the facts, and courts still defer to agencies on scientific and factual findings. What a statute means is a question of law, and law is what judges are trained for. Second, the uniformity argument cuts both ways. Under Chevron the law could change every time the White House changed hands, because an agency could adopt a new "reasonable" reading and the courts would go along. A rule that flips with each administration is not stable law. Third, if Congress wants an agency to have discretion, it knows how to say so. The burden belongs on the branch that writes the laws.

The part Republicans should hear

Here is my plain verdict: this ruling is fair, and fair works in both directions. A Republican administration's agencies lose the same advantage a Democratic administration's agencies lose. When a conservative president tries to stretch an old statute to do something new, the courts will no longer defer. That should please anyone who believes in limited government more than he believes in his own side winning an election.

If you want the practical effect on your life, think about the kinds of rules that touch ordinary people: environmental permits, labor and hours regulations, fishing and farming rules, health-plan requirements, financial rules for small banks. Each time an agency reads a vague phrase to expand its authority, the person affected can now ask a judge to read the phrase fresh, without a thumb on the scale. For the small business owner, how a small business owner can fight a federal rule before it is final explains the earlier stage of this process: the comment period, when you can make a record before a rule is final.

The major questions doctrine, the second brake

Loper Bright is one part of a broader move. The other is the major questions doctrine, set out most clearly in West Virginia v. EPA (June 30, 2022), decided 6 to 3, also by Chief Justice Roberts. The Court held that when an agency claims power to decide an issue of vast economic and political significance, it must point to clear authorization from Congress. In that case the issue was the Clean Power Plan, in which the EPA had claimed authority to restructure how the nation generates electricity. The Court said that an old, rarely used provision of the Clean Air Act could not carry that weight. See The Court Did Not Ban Clean Air. It Told EPA to Ask Congress First. for the details.

Taken together the two doctrines say the same thing from two directions. Where the stakes are modest, courts decide what the law means and give agencies only the respect their reasoning earns. Where the stakes are enormous, Congress must say so plainly. The pattern points one way: toward a Congress that writes the laws, the idea explored in Congress Should Write the Laws, and Other Radical Ideas From Article I.

What Congress must now do

This is the part that gets too little attention. The ruling puts the responsibility back on the legislature. If Congress wants an agency to have the power to adapt to changing technology, it must say so, in the statute, in words a court can read. If Congress wants a program to work in a particular way, it must spell out how. That is harder than passing a vague bill and letting the bureaucracy sort it out. It also means that members of Congress will have to take recorded votes on real choices and then stand before the voters. That is how a republic is supposed to work.

There will be costs. Some statutes will have to be rewritten. Some agency programs will be challenged and some will be struck down. Reasonable people can worry about instability during the transition. But a conservative should accept those costs for the same reason a homeowner accepts the cost of fixing a foundation: you do not build on sand.

You can read both opinions yourself on the Supreme Court's website, and I urge you to. Follow the Roberts opinion for the law and Justice Kagan's dissent for the best opposing case. If you want a method for reading cases like these, How to Read a Supreme Court Opinion Without a Law Degree is a good place to start, and Who Can Fire the Regulators? A Timeline From Myers to Seila Law picks up the related question of who controls the agencies.

The bottom line

• Chevron (1984) told courts to accept an agency's reasonable reading of an ambiguous law. Loper Bright (June 28, 2024) ended that, and now judges decide what a statute means.
• Agencies still get a hearing under Skidmore, and Congress can still delegate discretion if it says so plainly. Earlier cases decided under Chevron were not reopened.
• The ruling cuts against every administration, including a Republican one, which is the mark of a principle and not a tactic.
• If a federal rule is hitting your business or farm, ask a lawyer whether it still stands on the statute's text. Make your case in the comment period, and keep records.
• Tell your representatives plainly: write clear laws, and take the vote.