Chevron Deference is Dead, Long Live Deference

Abstract

In this article, forthcoming in the CATO Supreme Court Review, 2023-2024,  I explain and analyze the Court’s decision to abandon the Chevron rule of deference and what the demise of Chevron deference might mean for the future of judicial review of federal agency regulation. The demise of Chevron deference standing alone may turn out to be much less important than many believe. Partly, this is due to the Court’s explicit approval of deference under the Skidmore factors, which instruct reviewing courts to “resort for guidance even on legal questions” to “the interpretations and opinions of the relevant agency, made in pursuance of official duty and based upon specialized experience.”Further, the Court had already created numerous limitations to the reach of Chevron deference and, as the Court noted, it had not deferred under Chevron to an agency interpretation in nearly a decade. However, those who believe that robust federal regulation is important to advancing and preserving social welfare may have cause for concern over the anti-regulatory signals Loper Bright sends out and how Loper Bright may interact with other recent Court decisions incuding the major questions doctine, the Court's narrow readings of regulatory statutes and the recent decision on the timing of petitions for judicial review.

Keywords: Beermann, Chevron is Dead, Long Live Deference