In Loper Bright Enterprises v. Raimondo, a key case currently in front of the US Supreme Court, a significant ruling concerning the frequently utilized Chevron v. NRDC precedent established in 1984 is expected to emerge. This particular case’s outcome carries the potential to modify both the terminology employed in briefings and class discussions, and the application of regulations overseen by various agencies.
Within the precedent set by Chevron, the Supreme Court guides other courts to apply a lenient test determination to agency interpretations of statutes dispensed by the same agency. The initial phase of this test is the court’s analysis of whether Congress has explicitly addressed the query being investigated, which would then provide the resolution.
As the Loper case moves forward, it is anticipated that the justices will probably choose one of two alternatives. They could eiher “Kisorize” Chevron, maintaining the precedent, or they may rule against Chevron, replacing the Chevron test with the test first announced by the Supreme Court in its 1944 ruling, Skidmore v. Swift & Co.
The second potential outcome, an overturn of Chevron and the introduction of Skidmore deference, would still yield little effect on Supreme Court case outcomes. This is mainly due to the Supreme Court hasn’t applied Chevron in any case since 2016 even though it has decided many cases reviewing agencies’ interpretations of statutes within that period. However, such a transition could impact circuit court decisions, as research has suggested that agency interpretations of statutes get upheld 21% more frequently when citing Chevron than Skidmore.
On a more significant concern, the court’s 2021 decision to create the “major questions doctrine” and to apply it in multiple other cases has potential to severely hamper agency functioning, as lower courts are already using this new doctrine to overturn a multitude of agency decisions. The unfolding of the Loper case is still worth watching, regardless of these stated implications.
This update is based on analysis from Richard J. Pierce Jr., a highly respected Law Professor at George Washington University.