The Impact of Loper Bright v. Raimondo: An Empirical Review of the First Six Months

By ROBIN KUNDIS CRAIG. Full Text.

One of the most impactful decisions of the U.S. Supreme Court’s 2023–2024 term was Loper Bright Enterprises v. Raimondo, which overruled the forty-year-old administrative law doctrine of Chevron deference. This doctrine allowed federal agencies to interpret ambiguities in the statutes that they administer. Courts cited Chevron over 18,000 times in its forty-year existence, or roughly 450 times a year—more than once a day, on average. Small wonder, then, that in the first six months after the Supreme Court decided Loper Bright, courts cited it more than 400 times.

This article provides an empirical review of what courts are doing with Loper Bright in the initial aftermath of the Supreme Court’s decision. It offers three main observations. First, state courts react differently to Loper Bright depending on their own state administrative review standards and on whether the case before them involves federal law, with the most negative reaction coming from the Hawai’i Supreme Court and the most accepting reactions coming from states that never had or that have already eliminated the state equivalent of Chevron deference. Second, in the absence of additional guidance from the Supreme Court, lower federal courts are already diverging regarding what Loper Bright means for federal administrative law decisions, particularly with respect to other forms of administrative law deference, such as Skidmore and Auer deference. Finally, a decided difference has emerged between how the lower federal courts are treating new administrative rules, invalidating them almost 84 percent of the time, and how they treat all other federal activities, especially federal agency orders. While many of these rules would have been vulnerable regardless of Loper Bright, it remains worth watching how federal court review of new agency rules continues to unfold.