Loper Bright’s Deregulatory Synergies

For over 40 years, Chevron U.S.A. v. National Resources Defense Council stood as a keystone of administrative law. It infused agencies with the discretion to leverage the edges of statutory language and granted them the security that day-to-day agency actions would survive judicial review. Although Chevron’s demise in Loper Bright Enterprises v. Raimondo elicited rebuke from many legal scholars, it struck some as unsurprising, unimportant, or unconcerning, whether due to the narrowing of Chevron over time, the Supreme Court’s disuse of it in recent years, or the belief that its holding flew in the face of the Administrative Procedure Act. Highlighting the lack of clarity from legal scholars on a future without Chevron, one prominent article calls Loper Bright “a Rorschach test inside a crystal ball.” Largely missing from the scholarly discussion is the fact that Loper Bright does not exist in a legal vacuum. Regardless of solitary impact, Loper Bright threatens the upheaval of the administrative state by opening the door for deregulatory synergies with other Supreme Court decisions and existing legal devices. In particular, we examine synergies that, taken together, form a “playbook”—allowing plaintiffs to travel back in time to erase existing rules and reach into the future to halt the implementation of new ones. Loper Bright’s synergy with Corner Post v. Board of Governors and 303 Creative LLC v. Elenis results in an expanded time frame to file claims and an easy standing burden for plaintiffs to bring long-established rules under judicial scrutiny. Additionally, invoking Loper Bright together with recent judge shopping trends and universal vacatur would likely allow plaintiffs the sweeping remedy of nationwide nullification from a handpicked district court judge. By exploring these synergies, we aim to open the cover of Loper Bright’s deregulatory playbook and highlight the need for concerted action to counter the mounting deregulatory threat from Article III.