Adrian Vermeule, The Old Regime and the Loper Bright Revolution, SSRN (Dec. 12, 2024).
Abstract: A commonplace about revolutions, and counter-revolutions, is that however dramatic they may be in the short run, in the long run they often produce less change than their proponents hope and their opponents fear. Sometimes revolutions or counter-revolutions even serve to cement into place, or indeed augment, the very structures and norms that the revolutionaries found most objectionable. Such a thesis was suggested as to the most dramatic upheaval of them all, the French Revolution of 1789. In The Ancien Régime and The Revolution, written in 1856 after a long series of revolutions and counter-revolutions of varying description, Alexis de Tocqueville argued not only that the Revolution was as much an outgrowth of earlier laws, institutions, and norms as a departure from them, but also that those laws, institutions and norms largely survived the Revolution; indeed, they were in a sense confirmed and strengthened by it, albeit clothed in new outward forms. In what follows, I will suggest a similar thesis, of course on a much smaller scale, as to the Loper Bright “revolution” and indeed the administrative law “revolution” more generally. It is already possible to see how Loper Bright both grew out of pre-existing legal doctrines, principles and trends, and also to see how the chastening of the Loper Bright revolution could occur, leaving in place much of the old Chevron regime under different labels. Indeed, I will argue, the beginning of that process is already visible within the four corners of the majority opinion itself, and in subsequent lower-court decisions. In the long run, the Loper Bright revolution, and the larger movement of which it is the centerpiece, will have at most a marginal effect on administrative law. The laws and customs of the ancien regime will be (and already are being) reintroduced, in new forms and under new labels.