Cass R. Sunstein, The Consequences of Loper Bright (Harv. Pub. L. Working Paper No. 24-29, 2024).
Abstract: Loper Bright, overruling Chevron, is likely to produce a shift in authority from agencies to courts, by significantly increasing the likelihood that courts will strike down agency interpretations of law. But will it? And what counts as a significant increase? The answers depend, of course, on the meaning of both Chevron and Loper Bright. Under Chevron, courts hardly gave a blank check to agencies; on the contrary, they frequently invalidated agency interpretations of law. How much will invalidation rates rise? We do not know, in part (1) because Loper Bright retains Skidmore (which calls for respectful attention to agency interpretations); in part (2) because Loper Bright recognizes that Congress sometimes explicitly or implicitly delegates interpretive authority to agencies; and in part (3) because (and these must be counted as some of its effects) Loper Bright will (a) increase litigants' incentive to attack agency interpretations and (b) reduce agencies' incentive to adopt adventurous interpretations. Any numerical projection would be hazardous, but Loper Bright gives a clear signal, a green light to federal courts where Chevron gave a yellow light-which means that it is reasonable to predict a nontrivial increase in judicial invalidations (other things being equal). Still, current evidence is consistent with the following proposition: If the goal is to predict whether a court of appeals will strike down an agency's interpretation of law, it may be more important to know whether the panel consists of Republican or Democratic appointees, and whether the agency's interpretation leans left or right, than to know whether Chevron or Loper Bright is the governing law. It is safe to predict that in the near future, the combination of Loper Bright with increasing judicial skepticism about the administrative state will result in a nontrivial increase in invalidation of regulations designed to protect health, safety, and the environment. It is also safe to predict that in the near future, Loper Bright will lead to a significant increase in ideological divisions in the lower courts.