CHEVRON’S LEGACY

Mila Sohoni∗

[I]t was morning, and lo! now it is evening,

and nothing memorable is accomplished.

— Henry David Thoreau1

The writing was on the wall, though the ink was still fairly wet. A
few years ago, scholars guessed that Chevron2 would remain secure.3
Even in 2022, when the Court resolved a number of blockbuster admin-
istrative law cases without a glance at Chevron,4 it still seemed possible
that the Court might decide to fine-tune administrative law doctrine in
an “incremental[ist]” fashion.5
In June 2024, though, the Court in Loper Bright Enterprises v.
Raimondo6 ended Chevron’s purgatory.7 How much of a shock to the
system will Loper Bright prove to be? It is still too soon to gauge the
on-the-ground difference.8 A look at the opinion reveals that Loper
Bright contains both perils and possibilities for agencies. Under Chev-
ron, judges disagreed over whether a statute was “clear,” and they could
and did invalidate agency action when it ran against the statute’s “clear”

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∗ Professor of Law and John A. Wilson Distinguished Faculty Scholar, Stanford Law School.
For helpful feedback and conversations, I am grateful to Zach Clopton, Dan Deacon, Anuj Desai,
Chris Egleson, Richard Fallon, Thomas Merrill, Anton Metlitsky, Hashim Mooppan, Anne Joseph
O’Connell, Nate Persily, Steve Vladeck, Chris Walker, Adam Zimmerman, and to participants at
the University of Michigan Public Law Colloquium. I am deeply indebted to Hana Ryan for her
excellent research assistance and to the talented editors of the Harvard Law Review for their careful
comments and suggestions.
1 HENRY DAVID THOREAU, WALDEN 125 (The MacMillan Co. 1929) (1854).
2 Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), overruled by Loper
Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024).
3 See, e.g., Adrian Vermeule, Response, Neo-?, 133 HARV. L. REV. F. 103, 105–06 (2020);
THOMAS W. MERRILL, THE CHEVRON DOCTRINE: ITS RISE AND FALL, AND THE FUTURE
OF THE ADMINISTRATIVE STATE 7 (2022) (“A decision by the Court to overrule the Chevron
doctrine seems unlikely.”).
4 See Mila Sohoni, The Major Questions Quartet, 136 HARV. L. REV. 262, 281–82 (2022).
5 Kristin E. Hickman, Response, The Roberts Court’s Structural Incrementalism, 136 HARV.
L. REV. F. 75, 76–77 (2022).
6 144 S. Ct. 2244 (2024).
7 Id. at 2273 (“Chevron is overruled.”).
8 Perhaps as good a guess as any is Professor Cass Sunstein’s. See Cass R. Sunstein, The Con-
sequences of Loper Bright, 74 DUKE L.J. (forthcoming) (manuscript at 15), https://papers.ssrn.com/
sol3/papers.cfm?abstract_id=4881501 [https://perma.cc/4772-B6N9] (“An increase in the invalida-
tion rate of three percent or four percent, other things being equal, would be surprisingly small. An
increase of thirty percent or forty percent, other things being equal, would be shockingly large.
Within those numbers, we might be able to come up with reasonable lower and upper bounds, but
they would be both speculative and of limited value.” (footnote omitted)).

66
2025] CHEVRON’S LEGACY 67

meaning.9 Under Loper Bright, judges will disagree over what reading
of the statute is “best,” and they can and will invalidate agency action
when it runs against the statute’s “best” meaning.10 Under Chevron,
statutory silences and ambiguities came to be treated as implicit delega-
tions.11 Under Loper Bright, a statute that does not spell out a delega-
tion in pellucid terms may nonetheless qualify as a delegation of
interpretive authority to an agency.12 Under Chevron, agencies were
often, but not always, given deference to their resolution of statutory
ambiguities within their zones of expertise.13 Under Loper Bright,
though the agency’s entitlement to deference is abolished,14 an agency’s
interpretation will continue to receive “due respect” “to the extent it rests
on factual premises within [the agency’s] expertise.”15
Observing these and other parallels, a number of commentators have
predicted that from the ashes of Chevron deference there will rise, phoe-
nix-like, a new regime in which agencies will continue to possess discre-
tion,16 receive deference,17 and command respect.18 Professor Thomas
Merrill likewise appears to anticipate a degree of resurgence in his eru-
dite Comment, the title of which couples the “[d]emise of [d]eference”
with the possibility of a “[r]ise of [d]elegation to [i]nterpret.”19 A crucial
determinant, as Merrill points out, will be “just how broad[ly] or nar-
row[ly] the Court will tailor the category of delegations to agencies to

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9 Chevron, 467 U.S. at 842.
10 Loper Bright, 144 S. Ct. at 2263.
11 See Cuozzo Speed Techs., LLC v. Lee, 579 U.S. 261, 276–77 (2016) (“[W]here a statute leaves
a ‘gap’ or is ‘ambiguous,’ we typically interpret it as granting the agency leeway to enact rules that
are reasonable in light of the text, nature, and purpose of the statute.” (quoting United States v.
Mead Corp., 533 U.S. 218, 229 (2001); Chevron, 467 U.S. at 843)).
12 Loper Bright, 144 S. Ct. at 2263 & nn.5–6; see infra notes 27–39 and accompanying text.
13 Chevron, 467 U.S. at 844; see also Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 740–41 (1996)
(noting Chevron’s “presumption that Congress . . . understood that the ambiguity would be re-
solved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess
whatever degree of discretion the ambiguity allows”).
14 See Loper Bright, 144 S. Ct. at 2261 (“Section 706 makes clear that agency interpretations of
statutes . . . are not entitled to deference.”).
15 Id. at 2267 (alteration in original) (quoting Bureau of Alcohol, Tobacco & Firearms v. Fed.
Lab. Rels. Auth., 464 U.S. 89, 98 n.8 (1983)).
16 See Donald L.R. Goodson, Discretion Is Not (Chevron) Deference, 62 HARV. J. ON LEGIS.
12, 18 (2024) (“[Loper Bright] does not extend to unambiguously broad, open-ended terms or phrases
that explicitly convey broad grants of authority to federal agencies.”).
17 See Jack M. Beermann, Chevron Deference Is Dead, Long Live Deference, 2023–2024 CATO
SUP. CT. REV. 31, 47 (2024) (“[T]he Loper Bright opinion leaves room for judicial deference to
agency statutory construction under the pre-APA and pre-Chevron factors that were summarized
best in the Supreme Court’s Skidmore decision. And it remains to be seen whether Loper Bright
signals the end of the agency flexibility that was built into the Chevron framework.”).
18 See Jonathan H. Adler, From “Deference” to “Respect” — The Real Import of Loper Bright,
REASON: VOLOKH CONSPIRACY (July 3, 2024, 1:36 PM), https://reason.com/volokh/2024/07/03/
from-deference-to-respect-the-real-import-of-loper-bright [https://perma.cc/4MYW-7WZ4] (read-
ing Loper Bright as indicating a “shift from deference to respect”).
19 Thomas W. Merrill, The Supreme Court, 2023 Term — Comment: The Demise of Deference —
And the Rise of Delegation to Interpret?, 138 HARV. L. REV. 227, 227 (2024).
68 HARVARD LAW REVIEW FORUM [Vol. 138:66

interpret.”20 But for reasons that Merrill carefully outlines, it is possible

that Loper Bright could ultimately prove to be “a new framework ac-
commodating significant acceptance of agency interpretations” rather
than a “power grab” — at least in the hands of judges with the right
“attitude.”21
Picking up where Merrill’s Comment leaves off, this Response looks
at the forces that might shape Loper Bright’s future development. Some
would warmly welcome a world in which Loper Bright proved to make
only relatively modest inroads on the Chevron regime. Others, to put it
mildly, would not. The sentiment underlying the former position is ob-
vious and is set out at length in Justice Kagan’s searing dissent — if
courts replace agencies as the primary interpreters of statutes, the qual-
ity and quantity of federal regulation will be corroded, and America will
suffer for it.22 The sentiment underlying the latter position is also not
hard to grasp: Chevron was unlawful, the overruling of Chevron must
mean something, and Loper Bright’s shoulder-to-shoulder six-Justice
majority could not have meant to permit the reemergence of anything
resembling the Chevron regime.
This will be a dispute over the latent possibilities in the Loper Bright
decision, and by the same token a dispute over Chevron’s legacy — over
what, if any, legacy Chevron will be permitted to leave. The short-run
impact of Loper Bright will depend on which side gains the upper hand
in this dispute.
In the longer run, this abandoned landmark may prove to be perti-
nent in a different sense. An ancient principle of law and justice —
namely, “you broke it, you own it”23 — means that it is now incumbent

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20 Id. at 265 (“If the Court tailors this category narrowly, in addition to rejecting ambiguity as a
type of implicit delegation, the Court will leave a relatively narrow sphere for agency flexibility. If
the Court tailors the category broadly, it would give agencies significant flexibility, restoring a large
part of the discretionary authority taken away with the overruling of Chevron.”).
21 Id. at 231; see also Adrian Vermeule, The Deference Dilemma, 31 GEO. MASON L. REV. 619,
634 (2024) (“What the Court takes away with one hand, it would give back with the other . . . .”).
Professor Adrian Vermeule, writing in advance of Loper Bright, argued that a decision that repack-
aged deference as delegation would allow the Court to reach a “nominal[]” reconciliation between
two forces — the fact that truly nondeferential legal interpretation by judges is “pragmatically in-
tolerable,” id. at 629–30, on the one hand, and the fact that the legitimacy of the administrative law
depends “for both legal and cultural reasons,” id. at 630, on the existence of independent judicial
review, on the other.
22 See Loper Bright, 144 S. Ct. at 2300–01 (Kagan, J., dissenting); id. at 2311 (“Today, the
majority . . . gives courts the power to make all manner of scientific and technical judg-
ments[ and] . . . the power to make all manner of policy calls, including about how to weigh com-
peting goods and values.”); see also Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 144
S. Ct. 2440, 2482 (2024) (Jackson, J., dissenting) (“At the end of a momentous Term, this much is
clear: The tsunami of lawsuits against agencies that the Court’s holdings in [Corner Post] and Loper
Bright have authorized has the potential to devastate the functioning of the Federal Government.”).
23 Or, in the words of the prophecy given to the wounded Telephus by the oracle of Apollo, “your
assailant will heal you.” Cf. T. A. CAVANAUGH, HIPPOCRATES’ OATH AND ASCLEPIUS’ SNAKE:
2025] CHEVRON’S LEGACY 69

on the Roberts Court to ensure that the Loper Bright regime is judicially
administrable, fair, and politically legitimate enough to take the place of
the monumental precedent that it took it upon itself to demolish.24 As
we have recently witnessed, it is not easy to create a coordinating frame-
work for governing court-agency contestation over law and policy. And
as none other than Merrill has elsewhere taught us, the most promising
place to look to understand how this feat might be accomplished is to
learn from the saga of Chevron’s demise.25 If those lessons are absorbed
into the nascent Loper Bright regime, then that will be Chevron’s most
enduring legacy.
Drawing on Loper Bright and on Merrill’s Comment, Part I sets out
how the Loper Bright framework in principle and in application has the
potential to preserve dimensions of the realm of deference that Chevron
once safeguarded. Anticipating resistance to this understanding of
Loper Bright, this Part explains why Loper Bright should not be cabined
to avoid recreating outcomes that echo or resemble Chevron. Part II
looks to the road ahead. If the new Loper Bright regime is to succeed
in transcending the kinds of problems that came to conquer Chevron,
the Court must learn the lessons of Chevron’s fall. A brief conclusion
follows.

I. THE AMBIVALENCE OF LOPER BRIGHT

Loper Bright will go down in the annals of administrative law as the
case that bluntly overruled Chevron.26 But Loper Bright contains note-
worthy ambivalences that have the capacity to be developed in ways
that could preserve to a significant extent the power of agencies to de-
velop and interpret statutory schemes. Alongside that, Loper Bright es-
chews reliance on the Constitution and on nondelegation concerns — a
fact that also has uncertain implications. These known unknowns will
make Loper Bright into something like the rope in a game of tug-of-war
between proponents and opponents of administrative power, with the

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THE BIRTH OF THE MEDICAL PROFESSION 17 (2018) (translating the prophecy as “the wounder
will heal”). For only slightly less apocryphal reasons, this principle is also sometimes called the
“Pottery Barn rule.” William Safire, If You Break It . . . , N.Y. TIMES (Oct. 17, 2004),
https://www.nytimes.com/2004/10/17/magazine/if-you-break-it.html [https://perma.cc/FX2X-ZEGM].
24 This is the footnote, obligatory to the form, that says how often Chevron has been cited. See
Gary Lawson, “Then What?”: A Framework for Life Without Chevron, 60 WAKE FOREST L. REV.
(forthcoming 2025) (manuscript at 3), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4961745
[https://perma.cc/PHS7-P4NX] (noting that Chevron carried “more than 18,000 WESTLAW cita-
tions in court opinions and more than 22,000 WESTLAW citations in secondary literature”); see
also Kent Barnett & Christopher J. Walker, Chevron and Stare Decisis, 31 GEO. MASON L. REV.
475, 477–78 (2024).
25 MERRILL, supra note 3, at 274 (describing “the saga of the Chevron doctrine” as “an extended
case study revealing the issues that are likely to come to the fore in managing any division of au-
thority between courts and agencies in interpreting the law”).
26 Loper Bright, 144 S. Ct. at 2273 (“Chevron is overruled.”). Notably, though, Loper Bright did
not overrule Chevron’s “Clean Air Act holding,” id. See infra note 49.
70 HARVARD LAW REVIEW FORUM [Vol. 138:66

two sides each pulling on the decision to support their preferred vision
for how power should be allocated when courts review agency action.
In this dispute, the impetus to read Loper Bright to avoid recreating
Chevron-like results may exert significant force. This Part begins by
explaining these points and ends by explaining why it misunderstands
Loper Bright to treat it as rejecting Chevron-like results.
Let us begin by highlighting some key points about Loper Bright,
many more of which are canvassed at length in Merrill’s thorough Com-
ment.27 First, Loper Bright allows for delegation to agencies of consid-
erable power. In a crucial passage of Loper Bright, the Court cited a
number of statutes that it characterized either as “express[]” delegations
or as statutes that authorize agencies to exercise discretion.28 In the
former category are laws that provide that a statutory term will be
“give[n] meaning” by the agency.29 In the latter category are statutes
that allow agencies to flesh out the details of a statutory scheme and
statutes that authorize agencies to take steps that they adjudge to be
tailored to achieve hazily defined objectives.30 None of the cited statutes
use magic words (“with these words, I thee delegate . . . .”). It is true
that mere ambiguity is no longer sufficient to show that Congress has
“delegate[d] discretionary authority to an agency.”31 But a crystalline
statement of the magic-words kind is not necessary either. And Loper
Bright contemplates that agencies may be delegated “discretionary au-
thority” to make policy judgments within the boundaries of the author-
ity Congress has delegated to them.32 As Merrill underscores, “[t]his
appears to preserve, at least in the context of express or implicit delega-
tions, . . . a realm in which agencies have flexibility to adjust their
interpretations over time.”33 Moreover, Loper Bright does more than
just authorize courts to uphold agency action: it commands them to
do so when those actions fall within the terms of a particular statute’s
delegation.34
Second, the fact that an agency interpretation does not receive auto-
matic or across-the-board deference does not denude it of influence.

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27 This Response assumes familiarity with both Loper Bright and Merrill’s Comment.
28 Loper Bright, 144 S. Ct. at 2263 (quoting Batterton v. Francis, 432 U.S. 416, 425 (1977)).
29 Id. at 2263 & n.5.
30 See id. at 2263 & n.6. These are the “fill up the details” statutes and the statutes that call for
regulations that would secure flexible and open-ended statutory aims. Id. at 2263 (quoting Wayman
v. Southard, 23 U.S. (10 Wheat.) 1 (1825)).
31 Id. at 2263; see id. at 2265 (proclaiming that ambiguity is not a delegation); id. at 2267 (criti-
cizing “Chevron’s broad rule” that “ambiguities of all stripes trigger deference”).
32 Id. at 2263 (“When the best reading of a statute is that it delegates discretionary authority to
an agency . . . .”).
33 Merrill, supra note 19, at 265.
34 Loper Bright, 144 S. Ct. at 2273 (“And when a particular statute delegates authority to an
agency consistent with constitutional limits, courts must respect the delegation, while ensuring that
the agency acts within it.”).
2025] CHEVRON’S LEGACY 71

Repeatedly invoking Skidmore v. Swift & Co.,35 the Court in Loper

Bright instructed courts to be mindful of the agency’s experience and its
“informed judgment.”36 The opinion marks as “especially informative”
agency interpretations that draw on “factual premises within [the
agency’s] expertise,”37 and as “especially useful” those agency interpre-
tations that “issued contemporaneously with the statute, and which have
remained consistent over time.”38 If there is a hierarchical difference
between “especially informative” and “especially useful” agency inter-
pretations, Loper Bright does not appear to say so. Drawing on these
“informative” and “useful” agency views, courts may thus conclude that
the best reading of contestable statutory language aligns with the
agency’s interpretation of that language, even if the naked text of the
statute would seem to point a novice reader in a different direction. As
Merrill dryly hints, nothing much of substance may turn on whether one
calls this “deference” or reasoning to the “best” interpretation, except
that doing the former is liable to get you in hot water.39
Third, the fact that the Loper Bright is (at most) a statutory holding
is also noteworthy.40 Though Loper Bright began by citing Article III
and was peppered with references to Marbury,41 the decision is an in-
terpretation of Section 706 of the APA rather than an application of the
Constitution.42 That framing was helpful to the Court’s rather muddled
attempt to shore up the myriad past decisions — “undoubtedly thou-
sands”43 of them — in which courts have relied on Chevron to defer to
agencies’ reasonable interpretations of statutory ambiguities.44 If the
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35 323 U.S. 134 (1944).
36 Loper Bright, 144 S. Ct. at 2267 (“In an agency case in particular, the court will go about its
task with the agency’s ‘body of experience and informed judgment,’ among other information, at
its disposal. And although an agency’s interpretation of a statute ‘cannot bind a court,’ it may be
especially informative ‘to the extent it rests on factual premises within [the agency’s] expertise.’”
(alteration in original) (citation omitted) (quoting Skidmore, 323 U.S. at 140; Bureau of Alcohol,
Tobacco & Firearms v. Fed. Lab. Rels. Auth., 464 U.S. 89, 98 n.8 (1983))); see also id. at 2262, 2265.
37 Id. (quoting Bureau of Alcohol, Tobacco & Firearms, 464 U.S. at 98 n.8).
38 Id. at 2262 (citing Skidmore, 323 U.S. at 140; Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S.
457, 549 (2001)).
39 Merrill, supra note 19, at 263 (“If the court concludes that these tools of statutory interpreta-
tion support the agency’s interpretation, one could call this a form of ‘deference’ to the agency view.
Loper Bright suggested that the preferred locution is that these interpretative tools may indicate to
the court that the agency’s interpretation is ‘the best’ interpretation.” (citing Loper Bright, 144 S.
Ct. at 2266)).
40 Loper Bright, 144 S. Ct. at 2272–73. I say “at most” because, as Merrill notes, the Court’s
conclusion that Chevron is in conflict with Section 706 “rested on doubtful inferences from the APA,
rather than from the text of the APA itself,” and Loper Bright could equally be seen as “replacing
one [federal] common law regime with another.” Merrill, supra note 19, at 241.
41 See Loper Bright, 144 S. Ct. at 2257, 2261, 2271, 2273.
42 See id. at 2261; Merrill, supra note 19, at 235 (noting that “no constitutional infirmity was
cited by the majority” concerning Chevron’s “rule of judicial method”).
43 Merrill, supra note 19, at 245 & n.150 (“There are undoubtedly thousands of lower court
decisions affirming agency interpretations at step two.”).
44 Loper Bright, 144 S. Ct. at 2273 (“[W]e do not call into question prior cases that relied on the
Chevron framework.”).
72 HARVARD LAW REVIEW FORUM [Vol. 138:66

Chevron framework were constitutionally infirm, then these past deci-

sions would not just have been decided by a merely wrong methodology,
but by an unconstitutional (or really wrong) methodology, which would
increase their vulnerability going forward and amplify the disruption
caused by Loper Bright.45 Instead, Loper Bright, though it claimed to
“leave Chevron behind,” granted these offspring of Chevron visas of un-
certain duration to stay on in its brave new world of independent judi-
cial judgment.46 No Justice — not even Justice Thomas, who believes
Chevron to be unconstitutional47 — objected to this carve-out. Thus,
Loper Bright is not just a “tombstone no one can miss,”48 as Justice Gor-
such crowed, but is also thousands of missing tombstones.49
Fourth, Loper Bright’s holding is noteworthy for its silence concern-
ing nondelegation. Chevron was premised on the proposition that the
delegation to an agency of the power to make legally binding rules and

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45 See Jonathan Remy Nash, Chevron Stare Decisis in a Post-Loper Bright World, IOWA L.
REV. ONLINE (forthcoming) (manuscript at 1), https://papers.ssrn.com/sol3/papers.cfm?abstract_
id=4966351 [https://perma.cc/FCD2-KR24] (noting that Loper Bright’s preservation of past hold-
ings was an “attempt[] to minimize the substantial effect . . . on administrative law and governance”
of Chevron’s overruling). I am grateful to Professor Daniel Deacon, Anton Metlitsky, and Hashim
Mooppan for their thoughts on this point.
46 Loper Bright, 144 S. Ct. at 2273.
47 See id. at 2274 (Thomas, J., concurring) (“Chevron deference . . . violates our Constitution’s
separation of powers . . . .”).
48 Id. at 2275 (Gorsuch, J., concurring) (“Today, the Court places a tombstone on Chevron no
one can miss.”).
49 The analysis in the stare decisis passage is odd. A decision that relied on the Chevron frame-
work to uphold as reasonable an agency’s interpretation of a statutory ambiguity is not equivalent
to a “statutory precedent” that is entitled to claim statutory stare decisis effect. See id. at 2273
(majority opinion). In such a decision — a step two decision — the court is ultimately deciding on
the validity of the agency’s interpretation, not itself enunciating the meaning of the statute. See
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 984 (2005). At most,
such a decision is a determination that the statute in question is ambiguous. If that step one holding
of ambiguity is today, in the Court’s telling, “subject to statutory stare decisis despite [the Court’s]
change in interpretive methodology,” Loper Bright, 144 S. Ct. at 2273, then that puts strange
bookends on what courts may now hold. Consider a case asking a court to hold that there is a “best
reading” of the Clean Air Act even though, on this passage’s logic, the earlier holding that the Clean
Air Act is ambiguous remains good law. It appears that such a court may decide that reading the
Clean Air Act to mean X is the best reading, but it may not decide the statute clearly means X, for
that would contravene the earlier holding of ambiguity. If Loper Bright actually meant to preserve
Chevron-era holdings that “specific agency actions are lawful,” id. at 2273, as if those holdings
somehow spoke to the statute (at step one) and not to the agency interpretation (at step two), then
that would be both ironic and perverse. It would be ironic, for it would freeze into place earlier
agency interpretations that were reasonable but not the “best,” which flies in the face of Loper
Bright’s insistence that “[i]n the business of statutory interpretation, if it is not the best, it is not
permissible,” id. at 2266. It would be perverse because the result would be to insulate to a greater
extent pre–Loper Bright agency interpretations that were challenged and then sustained, relative to
pre–Loper Bright agency interpretations that no one thought to challenge because they were more
squarely in the zone of reasonable interpretation. I am grateful to Professors Zachary Clopton and
Adam Zimmerman for their thoughts on this footnote.
2025] CHEVRON’S LEGACY 73

to “make . . . policy choices” was legitimate.50 The fact that Chevron

allowed agencies to exert such authority over private rights and duties,
over the governance of American society, was at the heart of the most
fervent critiques of Chevron.51 Yet Loper Bright too is premised on the
proposition that Congress can delegate the power to make legally bind-
ing rules and policies to agencies, even those of the sort that regulate
private rights and liabilities in serious, far-reaching ways. In enumer-
ating examples of statutes that authorize agencies “to exercise a degree
of discretion”52 — and without hinting at any doubt concerning their
constitutional validity — Loper Bright cited laws that allow agencies to
specify which employees must get a minimum wage;53 to require firms
to report safety hazards to the government;54 and to regulate pollution
and power plants in accordance with an agency’s, not Congress’s, de-
termination of what rules are “appropriate,” “necessary,” or needed to
assure “protection of public health.”55 The Loper Bright Court cited to
a case and page56 wherein the Court in 1977 had explained that when
Congress has “expressly delegated” power to an agency, “the Secretary
adopts regulations with legislative effect. A reviewing court is not free
to set aside those regulations simply because it would have interpreted
the statute in a different manner.”57 Evidently, the Loper Bright Court
generally prefers to call this kind of thing an “authoriz[ation]” of
the “exercise of . . . discretion”58 or a “confer[ral]” of “discretionary

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50 Chevron, 467 U.S. at 865–66 (“[A]n agency to which Congress has delegated policymaking
responsibilities may, within the limits of that delegation, properly rely upon the incumbent admin-
istration’s views of wise policy to inform its judgments. . . . [I]t is entirely appropriate for this po-
litical branch[, i.e., the executive,] . . . to make such policy choices — resolving the competing
interests which Congress itself either inadvertently did not resolve, or intentionally left to be re-
solved by the agency charged with the administration of the statute in light of everyday realities.”).
51 See, e.g., Dep’t of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 70–71 (2015) (Thomas, J., con-
curring in the judgment); Michigan v. EPA, 576 U.S. 743, 762 (2015) (Thomas J., concurring) (“[I]f
we give the ‘force of law’ to agency pronouncements on matters of private conduct as to which
‘Congress did not actually have an intent,’ we permit a body other than Congress to perform a
function that requires an exercise of the legislative power.” (citation omitted) (quoting United States
v. Mead Corp., 533 U.S. 218, 229 (2001)) (citing Dep’t of Transp. v. Ass’n of Am. R.Rs., 575 U.S. at
88–89 (Thomas, J., concurring in the judgment))); PHILIP HAMBURGER, IS ADMINISTRATIVE
LAW UNLAWFUL? 2–3, 377–78 (2014).
52 Loper Bright, 144 S. Ct. at 2263.
53 See id. n.5 (citing 29 U.S.C. § 213(a)(15)) (provision delegating interpretive authority to Sec-
retary of Labor).
54 See id. (citing 42 U.S.C. § 5846(a)(2)) (provision delegating interpretive authority to Nuclear
Regulatory Commission).
55 See id. n.6 (citing 33 U.S.C. § 1312(a); 42 U.S.C. § 7412(n)(1)(A)) (provisions respectively in-
structing EPA to regulate effluent limitations and power plants).
56 Id. at 2263 (citing Batterton v. Francis, 432 U.S. 416, 425 (1977)).
57 Batterton, 432 U.S. at 425 (second emphasis added) (citing Am. Tel. & Tel. Co. v. United
States, 299 U.S. 232, 235–237 (1936)).
58 Loper Bright, 144 S. Ct. at 2263 (“[T]he statute’s meaning may well be that the agency is
authorized to exercise a degree of discretion.”).
74 HARVARD LAW REVIEW FORUM [Vol. 138:66

authority”59 rather than to name it as a delegation of the power to make

legally binding rules and set policy. But these citations are ones that
any proponent of a reinvigorated nondelegation doctrine should shudder
to read.60
This docility on nondelegation is remarkable on at least two scores.
Six years ago, the close-fought decision in Gundy v. United States61 and
a separate statement from Justice Kavanaugh in Paul v. United States62
seemed to indicate that the Court was one tick away from a full return
to the nondelegation doctrine’s “one good year” of 1935.63 Yet in 2024,
Justice Thomas wrote for himself alone in Loper Bright when he con-
tended that the overruling of Chevron was a necessary corollary of the
nondelegation doctrine.64
The second and related point is that the Loper Bright Court’s im-
plicit acceptance of the propriety of delegation extends a turn that be-
came visible in the recent “quartet” of decisions setting out the new
major questions doctrine.65 The nondelegation doctrine was a “dog that
didn’t bark” in those cases.66 The incompatibility of the new major
questions doctrine with a commitment to nondelegation was apparent
at the time of those decisions to me67 and also to Professor Merrill.68
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
59 Id. at 2268 (“That is not to say that Congress cannot or does not confer discretionary authority
on agencies. Congress may do so, subject to constitutional limits, and it often has.”).
60 Cf. Michigan v. EPA, 576 U.S. 743, 762 (2015) (Thomas, J., concurring) (claiming that one of
the cited statutes, 42 U.S.C. § 7412, if read to allow the agency to choose which policy goals it
wished to pursue, was a “potentially unconstitutional delegation[]”).
61 139 S. Ct. 2116 (2019); see id. at 2133 (Gorsuch, J., dissenting); id. at 2130–31 (Alito, J., con-
curring in the judgment).
62 140 S. Ct. 342, 342 (2019) (Kavanaugh, J., statement respecting the denial of certiorari).
63 This is the footnote, obligatory to the form, which flags that Professor Cass Sunstein famously
quipped that the nondelegation doctrine had “one good year.” Cass R. Sunstein, Nondelegation
Canons, 67 U. CHI. L. REV. 315, 322 (2000); see A.L.A. Schechter Poultry Corp. v. United States,
295 U.S. 495, 541–42 (1935); Pan. Refin. Co. v. Ryan, 293 U.S. 388, 430 (1935). The year 1936 was
also no slouch. See Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936) (invalidating a delegation
of power to private parties).
64 Loper Bright, 144 S. Ct. at 2275 (Thomas, J., concurring) (contending that Chevron deference
is unconstitutional because the exercise of policymaking authority by the Executive Branch “ex-
pands agencies’ power beyond the bounds of Article II” and “Chevron ‘permit[s] a body other than
Congress to perform a function that requires an exercise of legislative power’” (alteration in original)
(quoting Michigan v. EPA, 576 U.S. at 762 (Thomas, J., concurring))).
65 See Sohoni, supra note 4, at 263 (describing the quartet).
66 Id. at 267, 291–92 (noting that “the Court did not ground the quartet in nondelegation at all,”
id. at 291, but rather honed the major questions doctrine into a tool that could perform at a retail
level the most important work that the nondelegation doctrine would perform).
67 Id. at 302 (“[I]t would be extremely strange — if the Court were committed to the view that
the power to formulate binding rules for private parties cannot be delegated — for the Court to
have said, as it did in a concluding dictum in the EPA case, that the authority to adopt a scheme
like the Clean Power Plan ‘rests with Congress itself, or an agency acting pursuant to a clear dele-
gation from that representative body.’” (quoting West Virginia v. EPA, 142 S. Ct. 2587, 2616 (2022)
(emphasis added))).
68 See Thomas W. Merrill, Essay, The Major Questions Doctrine: Right Diagnosis, Wrong Rem-
edy, HOOVER INST. 2 (Nov. 13, 2023), https://www.hoover.org/research/major-questions-doctrine-
right-diagnosis-wrong-remedy [https://perma.cc/2CG4-9SHV].
2025] CHEVRON’S LEGACY 75

Indeed, I argued, the “best conceptual tether”69 for the new major ques-
tions doctrine was the opposite of a commitment to nondelegation: it
was the “exclusive delegation” principle that Congress does have the
power to delegate, but that only Congress does.70 The exclusive delega-
tion principle, as Merrill has elsewhere explained, “preserve[s] . . . legis-
lative supremacy,” but it “is enforced not by declaring a statute
unconstitutional, but through ordinary statutory interpretation by re-
viewing courts.”71 The quartet’s enunciation of a clear statement rule
for major questions would “make[] no sense” if the Court were commit-
ted to the view that Congress may not delegate legislative authority to
the executive branch.72
Loper Bright continued the quartet’s reticence concerning nondele-
gation as well as its implicit acceptance of exclusive delegation. As in
the three cases in the major questions quartet lost by the government,
the Court in Loper Bright “nowhere articulated or embraced the princi-
ple that agencies may not exercise legislative power or that Congress
may not delegate legislative power — the ideas embraced by proponents
of a more stringent nondelegation doctrine.”73 Instead, the cases in the
quartet — and now Loper Bright — “align better” with the exclusive
delegation principle.74 To put it more plainly, the Loper Bright Court in
essence said, “Congress may delegate legislative power to agencies, those
delegations may be either explicit or implicit, and in reviewing agency
action, the duty of courts is to decide independently whether the agency
is acting within the scope of that delegation.”75 What Loper Bright did
not say is, “Congress cannot delegate legislative power to agencies, and
agency resolution of statutory ambiguities under Chevron amounts to
the exercise of legislative power, so courts may not defer to agencies’
resolution of such ambiguities.” Five Justices in the majority could

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
69 Sohoni, supra note 4, at 308.
70 Id. at 306–07 (“[T]he theory in play may not really be the nondelegation doctrine at all but
rather what Professor Thomas Merrill calls the exclusive delegation doctrine. . . . If the constitu-
tional principle that is being enforced here is not nondelegation, but instead exclusive delegation,
then that would explain all four cases in the quartet.”).
71 Merrill, supra note 68, at 9.
72 Id. at 5 (“[I]f Congress has exclusive authority to legislate, and cannot transfer this to another
branch of government by giving it great discretionary power, it makes no sense to say Congress can
transfer great discretionary authority by clearly authorizing the transfer.”).
73 Sohoni, supra note 4, at 307.
74 Id.
75 See Loper Bright, 144 S. Ct. at 2263 (“When the best reading of a statute is that it delegates
discretionary authority to an agency, the role of the reviewing court under the APA is, as always, to
independently interpret the statute and effectuate the will of Congress subject to constitutional
limits. The court fulfills that role by recognizing constitutional delegations, ‘fix[ing] the boundaries
of [the] delegated authority,’ and ensuring the agency has engaged in ‘“reasoned decisionmaking”’
within those boundaries.” (alterations in original) (citations omitted) (quoting Henry P. Monaghan,
Marbury and the Administrative State, 83 COLUM. L. REV. 1, 27 (1983); Michigan v. EPA, 576
U.S. 743, 750 (2015))).
76 HARVARD LAW REVIEW FORUM [Vol. 138:66

have, but did not, join Justice Thomas’s opinion expressing exactly the
latter thought.76
The unspoken premise that delegation of legislative power is a legit-
imate tool that Congress may use, rather than an illicit third rail that
must be avoided or forsworn, was, alas, just that — an unspoken prem-
ise, not a proposition writ plainly on the face of the Loper Bright deci-
sion. But it is there nonetheless. And it is another way in which Loper
Bright may be understood as offering resources for legitimating agency
power, not just as a toolkit for cabining or crushing it.

* * *
The cash value of all this ambivalence in Loper Bright is far from
certain. Consider first the nondelegation doctrine. The Court may of
course still be on the brink of reviving the nondelegation doctrine —
nothing in Loper Bright does or could formally prevent such a holding
from arriving six months from now or for that matter next week. In-
deed, some may read the Loper Bright decision as inviting a nondelega-
tion resurgence, because of its repeated and needless references to
“constitutional limits” on delegation.77 Still, it would be uncommonly
silly for a Court that had just set out whole categories of statutes as
exemplars of delegations to agencies that must be “respect[ed]” to turn
around on a dime and categorically hold that delegation of legislative
power was unlawful.78
Consider next — while taking as constant the current state of non-
delegation doctrine — how Loper Bright will affect judicial review of
agency action. As just summarized, Loper Bright held that within the
permissible constitutional bounds of delegation — which remain, as of
this writing, the expansive parameters drawn by the intelligible princi-
ple test79 — agencies have the authority to act within the scope of their
delegated authority, even if they do so by making legally binding rules
that affect important spheres of private conduct.80 Loper Bright abol-
ished the Chevron-era presumption that all statutory ambiguities qualify
as implicit delegations.81 Jettisoned along with that has been the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
76 See id. at 2275 (Thomas, J., concurring). Notable for his decision not to join Justice Thomas
was Justice Gorsuch, whose dissent in Gundy endorsed the revival of the nondelegation doctrine.
See Gundy v. United States, 139 S. Ct. 2116, 2141–42 (2019) (Gorsuch, J., dissenting).
77 See Loper Bright, 144 S. Ct. at 2263, 2268, 2273. In November 2024, the Court granted
certiorari in two cases implicating the nondelegation doctrine, or at least the private nondelegation
doctrine. See SHLB Coal. v. Consumers’ Rsch., No. 24-422, 2024 WL 4864037, at *1 (U.S. Nov.
22, 2024) (mem.); FCC v. Consumers’ Rsch., No. 24-354, 2024 WL 4864036, at *1 (U.S. Nov. 22,
2024) (mem.); Amy Howe, Court Grants Challenge to FCC Subsidies over Nondelegation Doctrine,
SCOTUSBLOG (Nov. 22, 2024, 5:54 PM), https://www.scotusblog.com/2024/11/court-grants-
challenge-to-fcc-subsidies-over-nondelegation-doctrine [https://perma.cc/NZ8D-A9UC].
78 Loper Bright, 144 S. Ct. at 2263, 2268.
79 J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).
80 See supra note 75 and accompanying text.
81 Loper Bright, 144 S. Ct. at 2265.
2025] CHEVRON’S LEGACY 77

Chevron-era requirement that courts “defer” to agencies’ readings of am-

biguous statutes.82 In their stead, however, is Loper Bright’s parting
instruction: a new commandment to “respect the delegation,”83 and the
additional injunction that respect-worthy interpretations include those
that are based on “factual premises within [the agency’s] expertise”84
and those that are longstanding and contemporaneous with a statute’s
enactment.85 Altogether, then, the decision departs in important ways
from the Chevron regime, but it still “contains several familiar ele-
ments”86 that could be developed in a way that would underwrite sig-
nificant agency power — much as Chevron did.
All this falls straight out of the opinion and much of it comports with
Merrill’s assessment of it to boot.87 Yet in some quarters alarm bells
will ring at this reading of Loper Bright. To illustrate why, it is worth
pausing on certain passages of Merrill’s Comment that — though they
are Merrill’s good-faith assessments of Loper Bright’s meaning — could
almost be called opinion-drafting advice for lower courts. In discussing
an emphatic command of Loper Bright — its direction to courts to adopt
“the best” interpretation of the statute88 — Merrill emphasizes that
judges “must avoid any suggestion that they are upholding the agency
interpretation even though they do not regard it as the best,” but under-
scores the “striking[]” point that “if the court is persuaded that Congress
has expressly or implicitly delegated authority to the agency to interpret
the provision at issue, it may uphold the agency interpretation as rea-
sonable even if the court thinks it would have ruled differently.”89 Re-
latedly, in describing the court’s obligation to apply its “independent
judgment” using the tools of interpretation authorized by Loper Bright,
Merrill explains that “[i]f the court concludes that these tools of statutory
interpretation support the agency’s interpretation, one could call this a
form of ‘deference’ to the agency view,” but adds that “the preferred
locution is that these interpretative tools may indicate to the court that
the agency’s interpretation is ‘the best’ interpretation.”90

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
82 Id. at 2261.
83 Id. at 2273; id. at 2267 (alteration in original) (“Congress expects courts to do their ordinary
job of interpreting statutes, with due respect for the views of the Executive Branch.”).
84 Id. at 2267 (quoting Bureau of Alcohol, Tobacco & Firearms v. Fed. Lab. Rels. Auth., 464
U.S. 89, 98 n.8 (1983)).
85 Id. at 2262 (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); Whitman v. Am. Truck-
ing Ass’ns, Inc., 531 U.S. 457, 549 (2001)).
86 Merrill, supra note 19, at 271.
87 For a nice explanation of this outcome from an external perspective, see generally Daniel E.
Walters, Four Futures of Chevron Deference, 31 GEO. MASON L. REV. 635 (2024).
88 Loper Bright, 144 S. Ct. at 2263.
89 Merrill, supra note 19, at 263–64; id. at 264 (“So a court may be able to uphold agency inter-
pretations on various grounds, as long as the court avoids saying the agency’s interpretation is ‘not
the best.’”).
90 Id. at 263 (citing Loper Bright, 144 S. Ct. at 2266).
78 HARVARD LAW REVIEW FORUM [Vol. 138:66

Those who were opposed to Chevron deference will not take lying
down a reading of Loper Bright that treats it as merely “restraining the
use of the rhetoric of deference.”91 After all, courts do not overrule cases
as monumental as Chevron for cosmetic purposes. As critics of Chevron
will point out, Loper Bright held that the Chevron regime was unlawful
and that it produced bad outcomes, and it overruled Chevron to cure
that unlawfulness and prevent those bad outcomes. Ergo, Loper Bright
should not be understood to allow the recreation of anything like the
outcomes produced by the Chevron regime — no matter what “locution”
or “rhetoric” those outcomes are couched in.
Indeed, complaints in this register are already being voiced. In a
recent D.C. Circuit decision, the dissent accused the majority of “re-
vert[ing] to a Chevron-like framework” by failing to adopt the “best in-
terpretation,”92 while the majority’s rejoinder was to deny that its
interpretation did any such thing.93 Post-Loper Bright cases in which
agencies prevail will predictably spur such accusations of Chevron
“smuggl[ing]”94 — the aim of which will be to urge judges to reject any
understanding of Loper Bright that hints of reversion to Chevron.
In the already unfolding tug-of-war over the meaning of Loper
Bright, that anti-circumvention reading of the decision may be seduc-
tive. But it is also wrong. Judges applying Loper Bright should not shy
away from reaching Chevron-resembling outcomes.
The basic reason why is that to do so would misunderstand the aim
and role of the Loper Bright decision. Loper Bright was not an instruc-
tion to courts to avoid Chevron-ish outcomes. Rather, Loper Bright was
a self-conscious effort to craft a framework for judicial review of agency
interpretation that will endure going forward. Loper Bright specifies a
decisional process that requires judges to engage in independent inter-
pretation of the metes and bounds of congressional delegations to

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
91 Id. To be clear, as Merrill elaborately explains, Loper Bright’s impact goes far beyond disci-
plining the rhetoric that courts use to describe their reasoning. See id. at 271 (“[Loper Bright]
represents fundamental change. . . . The court is in charge, including in deciding when the agency
can exercise discretion — that is, make policy.”).
92 NextEra Energy Res., LLC v. Fed. Energy Regul. Comm’n, 118 F.4th 361, 376 (D.C. Cir.
2024) (Rao, J., dissenting) (emphasis omitted). NextEra Energy implicated a pre–Loper Bright rule
of “Chevron-like” deference to FERC’s interpretation of tariffs and contracts concerning energy
generation. See id. at 368 (majority opinion). The majority bracketed whether that type of defer-
ence had survived Loper Bright because it concluded that FERC’s interpretation was “in fact cor-
rect.” See id. Judge Rao, in dissent, contended that the majority was deferring to FERC without
admitting to doing so. See Haley Proctor, D.C. Circuit Review: Reviewed — Is “Chevron-like”
Precedent Overruled?, YALE J. ON REGUL.: NOTICE & COMMENT (Oct. 7, 2024), https://
www.yalejreg.com/nc/d-c-circuit-review-reviewed-is-chevron-like-precedent-overruled [https://
perma.cc/P3S8-UWS6] (noting that the dissenting judge “also protested what she saw as a sub-
silentio application of Chevron deference in the majority opinion”).
93 NextEra Energy Res., 118 F.4th at 371–72 (“These are bedrock principles of statutory con-
struction. Our application of them here does not, as the dissent contends, smuggle into our analysis
a ‘Chevron-like framework.’” (citation omitted) (quoting id. at 376 (Rao, J., dissenting))).
94 Id. at 372.
2025] CHEVRON’S LEGACY 79

agencies, on a statute-by-statute (or provision-by-provision) basis.

But — and this is the critical point — Loper Bright is formally agnostic
as to the results of that decisional process. It allows judges to conclude
that the “best reading” of a statute is that Congress has given a great
deal of power to an agency and that the agency has correctly used that
power. The fact that such a conclusion also happens to be one that
Chevron would have allowed had it not been overruled is not a reason
to avoid it. On the contrary, that this new framework allows for signif-
icant agency authority over statutory meaning makes perfect sense: in a
system premised on legislative supremacy, any responsible framework
for resolving court-agency conflicts concerning legal interpretation will
accept that Congress can legitimately choose to designate agencies, ra-
ther than courts, as the entities that will “give meaning” to statutes.95
It is worth noting that, though it is not common, it is not unheard of
for doctrine to “hydraulic[ally]” adapt to restore or preserve results ear-
lier allowed by rejected precedents or disfavored doctrines when alter-
native legally valid pathways to those results are found.96 Almost by
definition, someone is going to be unhappy when that happens —
namely, whichever coalition or interest group was powerful enough to
muster enough support to get a certain case or doctrine rejected is not
going to appreciate seeing the outcomes that were underwritten by the
older case or doctrine get recreated or preserved at a later time by an
alternative doctrinal pathway. But in various domains, examples ap-
pear of the regeneration or preservation of results that the Court’s ear-
lier decisional case law had earlier placed out of bounds.97
To pluck out one contemporary instance from a domain of law fa-
miliar to most readers, consider the evolution of personal jurisdiction
doctrine. In the era that followed the 1945 decision in International

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
95 Loper Bright, 144 S. Ct. at 2263 (“[S]ome statutes ‘expressly delegate[]’ to an agency the au-
thority to give meaning to a particular statutory term. Others empower an agency to prescribe rules
to ‘fill up the details’ of a statutory scheme, or to regulate subject to the limits imposed by a term
or phrase that ‘leaves agencies with flexibility,’ such as ‘appropriate’ or ‘reasonable.’” (second al-
teration in original) (footnotes omitted) (citations omitted) (quoting Batterton v. Francis, 432 U.S.
416, 425 (1977) (emphasis omitted); Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825); Michigan
v. EPA, 576 U.S. 743, 752 (2015)) (citing 29 U.S.C. § 213(a)(15); 33 U.S.C. § 1312(a); 42 U.S.C.
§ 7412(n)(1)(A))); id. nn.5–6 (enumerating a nonexhaustive list of statutes that empower agencies).
96 See Gundy v. United States, 139 S. Ct. 2116, 2141 (2019) (Gorsuch, J., dissenting) (“When one
legal doctrine becomes unavailable to do its intended work, the hydraulic pressures of our consti-
tutional system sometimes shift the responsibility to different doctrines.”).
97 Indeed, the phenomenon of cyclical or “epicyclical” development is not confined to doctrine;
it is an aspect of a broader pattern that is observable in legal theory writ large. Jeremy K. Kessler
& David E. Pozen, Working Themselves Impure: A Life Cycle Theory of Legal Theories, 83 U. CHI.
L. REV. 1819, 1842 (2016) (“Today’s originalism is the successor to last generation’s ‘interpretivism.’
Today’s CBA is the latest successor to versions of CBA dating back to the New Deal era. Both
theories have older intellectual roots. A prescriptive legal theory may fade away . . . only to be
reborn, years later, in a slightly revised and relabeled form. And then the impurification process
starts again. Our life cycle theory is thus consonant with a larger epicyclical account of legal theory
development.” (footnotes omitted)).
80 HARVARD LAW REVIEW FORUM [Vol. 138:66

Shoe Co. v. Washington,98 corporations were subject to general personal

jurisdiction in states in which they had “continuous and systematic”
presence.99 Decades on, in 2014, the Court in Daimler AG v. Bauman100
narrowed that category so that general personal jurisdiction over corpo-
rations existed only in states in which the corporation was headquar-
tered or incorporated.101 In 2017, the Court defended the boundaries of
that category in Bristol-Myers Squibb Co. v. Superior Court,102 in which
it held that the court below had erred when it adopted a “sliding scale
approach” to specific personal jurisdiction that allowed “extensive fo-
rum contacts that are unrelated to [the plaintiff’s] claims” to make it
amenable to suit in the state.103 Then, however, in 2021, came Ford
Motor Co. v. Montana Eighth Judicial District Court,104 in which the
Court allowed personal jurisdiction over a pair of suits that were not
directly connected to the company’s activities in the forum.105 The Ford
Court found that there was an “affiliation” between the forum and the
suit sufficient to support specific personal jurisdiction106 — almost as
though there were a “sliding scale approach” to personal jurisdiction
rather than a strict distinction between general personal jurisdiction and
specific personal jurisdiction.107 The upshot is that some suits that could
no longer be brought on a general personal jurisdiction theory will now
be able to proceed on a specific personal jurisdiction theory. This partial
doctrinal snapback happened because, as Professor Zachary Clopton
put it, “the relationship between general and specific jurisdiction” is such
that “[i]f one is contracted, that is necessarily going to put pressure on
the other to expand.”108
A related phenomenon — doctrinal migration — may be found in
the intertwined arcs of due process and First Amendment doctrine.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
98 326 U.S. 310 (1945).
99 Id. at 317; see also Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).
100 571 U.S. 117 (2014).
101 Id. at 137–39.
102 137 S. Ct. 1773 (2017).
103 Id. at 1781; cf. BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 1559 (2017) (“[I]n-state busi-
ness . . . does not suffice to permit the assertion of general jurisdiction over claims . . . that are un-
related to any activity occurring in [the state].”).
104 141 S. Ct. 1017 (2021).
105 Id. at 1031.
106 Id. (quoting Bristol-Myers Squibb, 137 S. Ct. at 1780).
107 See Brief for Petitioner at 30, Ford Motor Co., 141 S. Ct. 1017 (No. 19-368) (“By holding
causation unnecessary, the lower courts revived the sort of ‘sliding scale approach’ that Bristol-
Myers Squibb rejected . . . .”); see also Allan Erbsen, Personal Jurisdiction’s Moment of Oppor-
tunity: A Reform Blueprint for Originalists and Nonoriginalists, 75 FLA. L. REV. 415, 458 (2023)
(pointing out that “authorizing personal jurisdiction based on unrelated contacts would create a
regime akin to what [Bristol-Myers Squibb] labeled ‘spurious’ general jurisdiction” (quoting Bris-
tol-Myers Squibb, 137 S. Ct. at 1781)).
108 See Marin K. Levy, Kevin Clermont, Zachary Clopton & Mila Sohoni, Open Road? Ford
Reroutes Personal Jurisdiction, 105 JUDICATURE, no. 3, 2021, at 76, 78.
2025] CHEVRON’S LEGACY 81

Pierce v. Society of Sisters109 and Meyer v. Nebraska110 were initially

based in liberty of contract.111 They later were cast as First Amendment
cases,112 only to subsequently become relocated within the right of pri-
vacy protected by substantive due process.113 Tomorrow, if it becomes
untenable to maintain that category of substantive due process,114 the
cases may return again to the First Amendment. Other liberty of con-
tract results have followed the same route of migration to the First
Amendment’s friendlier doctrinal climes.115 Likewise, the Due Process
Clause “has become a refuge of sorts for constitutional principles
that . . . would otherwise be homeless as a result of having been exiled
from the provisions in which they may have originally been intended to
reside.”116
These examples of doctrinal recreation or preservation may be help-
ful to understanding Chevron, Loper Bright, and the relationship be-
tween them, which may similarly prove to be “hydraulic” in its dynamic.
One way to say this is that there are overrulings and then there are
overrulings. The overruling of Chevron was not like the overruling of,
say, Plessy.117 Chevron’s overruling was not a root-and-branch rejection
of administrative power the way that Plessy’s overruling was a rejection
of Plessy’s poisonous premises. If courts seem to be smuggling Chevron-
like concepts into their decisions, that is only because the Court did the
same in Loper Bright. And insofar as Loper Bright in application proves
to reprise dimensions of the Chevron-era landscape, that will be because
Loper Bright contemplates those results. Some critics of Chevron will
be disappointed if Loper Bright turns out not to be the death knell for
administrative power. But “was-it-all-for-this”118 kind of thinking is not
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
109 268 U.S. 510 (1925).
110 262 U.S. 390 (1923).
111 See id. at 400; Pierce, 268 U.S. at 534–36.
112 See Griswold v. Connecticut, 381 U.S. 479, 482 (1965).
113 See Roe v. Wade, 410 U.S. 113, 152–53 (1973), overruled by Dobbs v. Jackson Women’s Health
Org., 142 S. Ct. 2228 (2022).
114 But cf. Dobbs, 142 S. Ct. at 2277–78 (claiming that Dobbs does not “cast doubt on precedents
that do not concern abortion”).
115 See Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2501 (2018) (Kagan, J., dissenting)
(contending that the majority had “weaponiz[ed] the First Amendment, in a way that unleashes
judges, now and in the future, to intervene in economic and regulatory policy”); Sorrell v. IMS
Health Inc., 564 U.S. 552, 591–92 (2011) (Breyer, J., dissenting). For a critique, see Alexander Tsesis,
The Free Speech Clause as a Deregulatory Tool, 5 J. FREE SPEECH L. 381, 381 (2024) (arguing for
a “more proportionate and less categorical approach” for First Amendment challenges to govern-
ment regulations).
116 Mallory v. Norfolk S. Ry. Co., 143 S. Ct. 2028, 2050 (2023) (Alito, J., concurring in part and
concurring in the judgment).
117 Plessy v. Ferguson, 163 U.S. 537 (1896), overruled by Brown v. Bd. of Educ., 347 U.S. 483 (1954).
118 See Josh Hawley, Was It All for This? The Failure of the Conservative Legal Movement,
PUB. DISCOURSE (June 16, 2020), https://www.thepublicdiscourse.com/2020/06/65043 [https://
perma.cc/FX6U-26PY] (lamenting that if the end result of the “fight[] for originalism and textual-
ism” is Bostock v. Clayton County, 140 S. Ct. 1731 (2020), then the conservative legal movement
has not “been fighting for very much”).
82 HARVARD LAW REVIEW FORUM [Vol. 138:66

the right way to think about legal decisionmaking in general, and it

should carry no weight in how courts read Loper Bright in particular.

II. LEARNING FROM CHEVRON’S FALL

“The question before the Court,” as Merrill noted, “was whether to
institute a type of regime change.”119 The term “regime change” is apt.
Loper Bright is the Court’s attempt to set out a durable new regime that
would resolve court-agency conflicts concerning legal interpretation. As
illustrated by the story of Chevron’s rise and fall, such regimes are sub-
ject to various pressures that “always and inevitably arise in calibrating
the proper allocation of authority between agencies and courts to say
what the law is.”120 These pressures may be either internal or external
to the framework, and over time they can extract a toll. The longevity
and resilience of the Loper Bright framework going forward is going to
depend on whether it can succeed in navigating the kinds of strains that
ultimately undermined Chevron. Following a path suggested in Mer-
rill’s other writings,121 this Part draws out lessons from Chevron’s de-
mise and explains how they may bear on the nascent Loper Bright
regime.
Begin by surveying the chief factors that caused Chevron’s col-
lapse.122 A major one was the most obvious: Chevron’s promise of sim-
plicity ultimately disintegrated. A “great strength” of the Chevron
doctrine, at least as advertised, was that it set out a “simple and readily
comprehensible formula” for allocating interpretive authority as be-
tween courts and agencies phrased in a “common vocabulary” that
courts and agencies could easily grasp.123 The quickly apparent weak-
ness of the formula was that its two component questions — when is a
statute clear, and when is an action reasonable? — were both highly
malleable.124 The additional refinements introduced by the Court to the
Chevron test125 transformed what began “as a relatively simple two-
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
119 Merrill, supra note 19, at 244.
120 MERRILL, supra note 3, at 274.
121 See, e.g., id.
122 Other factors surely contributed. For example, the declining legislative capacity of Congress
as a result of polarization and gridlock and the concomitant increase in presidentially driven poli-
cymaking by the executive branch increased the strain on the Chevron framework by forcing agen-
cies to rely on old statutes to solve new problems. Jody Freeman & David B. Spence, Old Statutes,
New Problems, 163 U. PA. L. REV. 1, 7 (2014) (“Put most plainly, congressional dysfunction invites
agencies and courts to do the work of updating statutes.”). The broader methodological shift to-
wards textualist or formalist modes of interpretation may have made courts less hospitable to doc-
trines that turn on the line between clarity and ambiguity, which is difficult to police on a consistent
basis. See Merrill, supra note 19, at 259 n.240 (noting that Justice Kavanaugh’s objection to doc-
trines triggered by ambiguity was likely a “pivotal factor” in Loper Bright’s overruling of Chevron).
123 MERRILL, supra note 3, at 257.
124 Id. at 258–59 (summarizing how the Chevron two-step came to conjoin “two indeterminate
standards,” id. at 259).
125 See Merrill, supra note 19, at 251–54 (explaining various “[q]ualifications” to Chevron that
emerged over the years).
2025] CHEVRON’S LEGACY 83

step” into at least a “minuet,”126 even if not a “dizzying breakdance.”127

And the recent addition of the new major questions doctrine as a “canon
of antideference” was the bale of hay that broke the camel’s back.128
A second factor was that the Chevron doctrine came to be seen as,
in a word, unfair.129 The heart of the doctrine was that it did not pro-
vide a level playing field, but instead weighted the scales so that the
agency would win if the statute was ambiguous and the agency’s inter-
pretation got over the threshold of reasonableness.130 This tilt, Professor
Philip Hamburger charged, was a “systematic bias” that amounted to
nothing less than a flat Fifth Amendment due process violation.131 As
Merrill more mildly notes, the argument that Chevron was unfair “has
some force, especially in the context of Justice Gorsuch’s favorite exam-
ples involving ‘ordinary people’ protesting against the action of a large
impersonal bureaucracy.”132 A rule of agency deference that makes
eminent sense in the context of regulating complex and technical scien-
tific and industrial questions — the kinds of questions on which Justice
Kagan focused133 — appears in a different light when it also means that
immigrants get deported and veterans lose their benefits — the kinds
of questions on which Justice Gorsuch focused.134 A deficit of fairness
is also the basic thrust of the complaint that Chevron allowed too
much leeway to agencies to change course and that it thereby played

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
126 Mila Sohoni, A Fuller Picture of Internal Morality, YALE J. ON REGUL.: NOTICE &
COMMENT (Apr. 14, 2021), https://www.yalejreg.com/nc/law-leviathan-redeeming-the-administrative-
state-part-03 [https://perma.cc/5MX3-5C8G] (“[T]he doctrines of judicial review of agency action . . .
seem to be becoming less, not more, understandable. Chevron began its career as a relatively simple
two-step. These days, it is more of a minuet.”).
127 Loper Bright, 144 S. Ct. at 2271; cf. id. at 2309 (Kagan, J., dissenting) (“If that is the majority’s
idea of a ‘dizzying breakdance,’ the majority needs to get out more.” (citation omitted) (quoting id.
at 2271 (majority opinion))).
128 William N. Eskridge, Jr. & John Ferejohn, The APA as a Super-Statute: Deep Compromise
and Judicial Review of Notice-and-Comment Rulemaking, 98 NOTRE DAME L. REV. 1893, 1947
(2023); see also Ronald M. Levin, The Major Questions Doctrine: Unfounded, Unbounded, and
Confounded, 112 CALIF. L. REV. 899, 905 (2024) (noting that “[o]ver time,” the major questions
doctrine evolved into “a freestanding exception to Chevron”).
129 See Loper Bright, 144 S. Ct. at 2285 (Gorsuch, J., concurring).
130 Merrill, supra note 19, at 242 (“In effect, if the statute is sufficiently ambiguous, the govern-
ment wins, provided it can offer an interpretation a reasonable interpreter might adopt.”).
131 Philip Hamburger, Chevron Bias, 84 GEO. WASH. L. REV. 1187, 1211 (2016). Justice Gor-
such cited Hamburger’s article in his concurring opinion. See Loper Bright, 144 S. Ct. at 2285
(Gorsuch, J., concurring).
132 Merrill, supra note 19, at 242–43 (quoting Loper Bright, 144 S. Ct. at 2288–89 (Gorsuch, J.,
concurring)).
133 Loper Bright, 144 S. Ct. at 2296–97 (Kagan, J., dissenting).
134 Id. at 2288–89 (Gorsuch, J., concurring). For scholarship highlighting the problems with
Chevron in immigration, see generally Shoba Sivaprasad Wadhia & Christopher J. Walker, The
Case Against Chevron Deference in Immigration Adjudication, 70 DUKE L.J. 1197 (2021), and
Maureen A. Sweeney, Enforcing/Protection: The Danger of Chevron in Refugee Act Cases, 71
ADMIN. L. REV. 127 (2019).
84 HARVARD LAW REVIEW FORUM [Vol. 138:66

havoc with settled expectations and “affirmatively destroy[ed]” reliance

interests.135
A third — and in pragmatic terms, perhaps the most important —
factor in Chevron’s demise was a sharp change in “the politics of defer-
ence.”136 Chevron started as a doctrine favored by conservatives be-
cause it was “thought to facilitate deregulatory initiatives by the Reagan
and Bush Administrations.”137 Conservative political opposition to
Chevron gradually coalesced in the late 2000s and became pronounced
after 2016.138 By 2017, an “anti-administrativist[]” and wide-ranging
“attack” on regulatory power was in full view.139 Opponents of the ad-
ministrative state drew support from “a well-funded network of liber-
tarian paralegal institutions — think tanks, legal centers, and others —
that have consistently urged both critiques of Chevron deference in par-
ticular and skepticism about the administrative state in general.”140 By
2022, a number of individual opinions had issued from various Justices
castigating Chevron deference,141 while others had seemed “at least
skeptical of some of its applications.”142 And these critiques ultimately
culminated in Loper Bright’s overruling of Chevron.
Last and in this case also least, there is a fourth factor that led to
Chevron’s demise that is ironically minor in its significance relative to
the others — the proposition that Chevron deference was incompatible
with section 706 of the APA. The argument that Chevron deference is

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
135 Loper Bright, 144 S. Ct. at 2272.
136 See Gregory A. Elinson & Jonathan S. Gould, The Politics of Deference, 75 VAND. L. REV.
475 (2022) (charting a political history of Chevron deference); see also Craig Green, Deconstructing
the Administrative State: Chevron Debates and the Transformation of Constitutional Politics, 101
B.U. L. REV. 619, 622 (2021) (“This remarkably new generation of anti-Chevron critiques is linked
to personnel shifts in the judiciary and also to broader ideas about the ‘deconstruction of the
administrative state.’” (quoting Ryan Teague Beckwith, Read Steve Bannon and Reince Priebus’
Joint Interview at CPAC, TIME (Feb. 23, 2017, 3:59 PM), http://time.com/4681094/reince-priebus-
stevebannon-cpac-interview-transcript [https://perma.cc/2HCE-Y5Y2])).
137 Merrill, supra note 19, at 230; see Walters, supra note 87, at 649–52 (explaining the turn as a
result of the perception that the judiciary, rather than the presidency, was comparatively more fa-
vorable to conservatives).
138 Christopher J. Walker, Attacking Auer and Chevron Deference: A Literature Review, 16 GEO.
J.L. & PUB. POL’Y 103, 104–05 (2018); Merrill, supra note 19, at 230 (“Shortly after Justice Scalia’s
death in 2016, perhaps in reaction to the Obama Administration’s use of aggressive administrative
action to address the status of undocumented migrants and climate change, conservative commen-
tary about Chevron turned sharply hostile.”); MERRILL, supra note 3, at 280 (noting that following
Justice Scalia’s death, “a new school of thought, committed to the idea that judges have an unflag-
ging obligation to ‘say what the law is,’ surged to the fore, and identified the Chevron doctrine as
the enemy.”).
139 See generally Gillian E. Metzger, The Supreme Court, 2016 Term — Foreword: 1930 s Redux:
The Administrative State Under Siege, 131 HARV. L. REV. 1, 3, 7, 8–33 (2017) (mapping the history
and resurgence of “anti-administrativism” and its political, judicial, and academic manifestations).
140 Vermeule, supra note 21, at 628.
141 See Merrill, supra note 19, at 227 & n.10.
142 Id. at 231.
2025] CHEVRON’S LEGACY 85

antithetical to the APA was late-breaking and flawed.143 It was also, as

Merrill notes, inconsistent with the Court’s recent invention of the new
major questions doctrine: because that doctrine “has no analog in pre-
APA decisional law, . . . on the majority’s reasoning in Loper
Bright, . . . the major questions doctrine violates the APA.”144 The APA
argument was the legal vehicle into which the other three factors were
channeled and packaged, rather than a claim that on its own would
have carried the day.
The first three, then, are the three real contributors to Chevron’s de-
mise. First, its promise of simplicity crumbled. What began as a clean
two-step test morphed into an intricate series of steps and exceptions.
Second, critics came to see the doctrine as fundamentally unfair, both in
its impact on certain cases affecting individuals and in its broader sys-
temic consequences for predictability and reliance. Third, and perhaps
most crucially, the politics around deference shifted dramatically. Con-
servatives, who once championed Chevron as a tool for deregulation,
turned against it. This opposition gained support and momentum
through a network of conservative legal institutions that systematically
challenged both Chevron and the administrative state. Lastly, and of
least importance, there was the legal argument that Chevron violated
the APA. This belated claim had serious flaws, but it provided a con-
venient legal leading edge for all the other objections.
The lessons for Loper Bright follow from this diagnosis of the three
key challenges that beset Chevron and ultimately triggered its demise:
judicial administrability or “workability,” fairness, and political legiti-
macy. Going forward, the Court must address all three if it hopes for
its regime to prove more durable than Chevron.145
First, the Court must ensure that Loper Bright is workable, in the
sense of being clear and predictable. The Loper Bright Court’s eager-
ness to lay out a full-throated case for dismantling and overturning
Chevron came at a cost: it did not offer a clear roadmap for how courts
should exercise their newly central power of independent legal judgment
when evaluating various kinds of delegations and the extent of agency
authority to act within those delegations. The lacunae in Loper Bright
create the real risk that it will repeat Chevron’s trajectory by hurtling
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
143 Id. at 241 (“[T]he conflict with the APA was recently discovered — indeed was announced
only in Loper Bright itself — and rested on doubtful inferences from the APA, rather than from the
text of the APA itself.”); Ronald M. Levin, The APA and the Assault on Deference, 106 MINN. L.
REV. 125, 181–83 (2021).
144 Merrill, supra note 19, at 240; see also Eskridge & Ferejohn, supra note 128, at 1951 (noting
that in the 1940s, the Office of Price Administration exercised vast regulatory powers over the
American economy under the auspices of “[t]he broadest delegation of agency authority in American
history,” and yet the courts reviewing the office’s actions did not invoke a clear statement rule or
an antideference doctrine).
145 No more need be said on the APA argument: Loper Bright is not likely to be assailed on the
grounds that it is inconsistent with the APA because Loper Bright itself has effectively put the
kibosh on that claim.
86 HARVARD LAW REVIEW FORUM [Vol. 138:66

from “appealing simplicity”146 to bewildering complexity. The Court

noted disparagingly of Chevron that it “launched and sustained a cottage
industry of scholars attempting to decipher its basis and meaning”;147
but if that’s the test, Loper Bright is already failing, for a “cottage in-
dustry of scholars” has already emerged to analyze Loper Bright, and its
business is booming.148 This surge of academic attention is not because
scholars have nothing better to do; it reflects genuine uncertainty about
how the Loper Bright framework should operate in various legal do-
mains and upon different types of agency pronouncements.149 If Loper
Bright is to avoid Chevron’s fate, the Court needs to provide clearer
guidance about how Loper Bright should work in practice before new
reticulated schemes of multi-step tests and doctrinal boxes rush in to fill
the gaps.
A related concern is maintaining consistency across courts in review
of agency action. The Court’s instruction to find the “single, best mean-
ing”150 of a statute was meant to sound straightforward, but that in-
struction must be implemented by hundreds of federal judges
nationwide. As Merrill observes, “[i]t does not take a crystal ball to
predict that” Loper Bright’s instruction “will cause legal disagreement
to proliferate”151 as lower courts reach conflicting conclusions about
statutory meaning and agency authority.152 That fragmentation will en-
gender the same kinds of reliance and rule-of-law critiques that beset
Chevron, unless the Court is able to introduce greater order into the
analysis and do a better job of policing lower-court decisionmaking —
perhaps by “dramatically expand[ing] its caseload.”153
Second, the Court must ensure Loper Bright is applied fairly. Just
as Chevron came to be criticized for unduly favoring government agen-
cies, Loper Bright risks being used — at least in some judges’ hands —

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
146 MERRILL, supra note 3, at 280.
147 Loper Bright, 144 S. Ct. at 2270.
148 See, e.g., supra notes 8, 16–19.
149 See Merrill, supra note 19, at 264–71 (enumerating various questions that “Loper Bright
leaves . . . unclear,” id. at 264, as well as “matters of pure speculation,” id. at 269, raised by the
decision).
150 Loper Bright, 144 S. Ct. at 2266.
151 Merrill, supra note 19, at 246.
152 Id. (“One of the costs of the Court’s penchant for proceeding in the law-declaration mode is
that it loses sight of the need to develop doctrine that can be effectively applied at all levels of the
judiciary.”).
153 Id. Congress, if it is inclined to be useful, has a role to play here too. Expanding the statutory
mechanisms for lotteries of challenges to rules or laying venue for such challenges in the District of
Columbia would help to mitigate the impact of the uptick in nationwide injunctions, universal
vacaturs, and universal stays of rules that may result from Loper Bright and from the Court’s
interpretation of the statute of limitations for challenging rules under the APA. See Corner Post v.
Bd. of Governors of the Fed. Rsrv. Sys., 144 S. Ct. 2440, 2448, 2460 (2024) (holding that an APA
claim accrues when “the plaintiff is injured by [the] final agency action”). See generally Mila Sohoni,
The Power to Vacate a Rule, 88 GEO. WASH. L. REV. 1121, 1189 n.347 (2020) (noting options for
legislative reforms to administrative law’s remedial regime).
2025] CHEVRON’S LEGACY 87

as an automatic trump card for those challenging agency action. Yet

the federal government, too, is entitled to a fair shake in federal courts.
A just regime must allow agencies to prevail when they have the better
reading of the statute. And the same framework should apply regardless
of whether agencies seek to regulate or deregulate, for either regulation
or deregulation may logically fall within or without the scope of power
that Congress has delegated to an agency. This would actually represent
an improvement over the recent post-quartet state of affairs, in which
the new major questions doctrine had created an asymmetric landscape
that made it harder to take new and major regulatory action but im-
posed frail constraints on major agency action that deregulated.154
Finally, the Court should absorb the lesson that the political legiti-
macy of a framework matters a great deal. Chevron’s downfall was
hastened by sustained conservative opposition that portrayed it as too
deferential to unaccountable agencies. That criticism did not emerge in
the immediate aftermath of Chevron, but instead coalesced many years
on.155 Similarly, over the long term if not immediately, Loper Bright
will face the mirror-image risk: criticism from the left as a judicial power
grab that illegitimately constrains congressional authority and demo-
cratic governance. That criticism will gain force if Loper Bright comes
to be applied selectively, in a politically asymmetric fashion — that is to
say, in a manner that sustains broad regulatory power when it is wielded
by one political party but that routinely strikes it down in the hands of
the other. Not much can usefully be said on this score: whether political
opposition to Loper Bright ultimately takes root will depend on whether
the Court decides to implement the Loper Bright framework responsibly
and in an even-handed manner across administrations — or whether it
chooses to simply let it be an illegitimate power grab.

CONCLUSION
Many feel about judicial deference to administrative agencies the
way that Mark Twain felt about whiskey — that too much is barely
enough. Loper Bright will certainly not slake that thirst. But the Loper
Bright bottle may yet be half full. Loper Bright contains significant
ambivalences that could allow it to preserve much of agencies’ interpre-
tive authority. Those who hope to read Loper Bright as a complete
rejection of agency authority misunderstand the decision. The Court
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
154 See Timothy Meyer & Ganesh Sitaraman, The National Security Consequences of the Major
Questions Doctrine, 122 MICH. L. REV. 55, 69–70 (2023) (explaining why the major questions doc-
trine is far less likely to be applied to “economically or politically significant deregulatory actions,”
id. at 70); cf. Daniel T. Deacon & Leah M. Litman, The New Major Questions Doctrine, 109 VA. L.
REV. 1009, 1088 (2023) (“The major questions doctrine . . . seems to embed de-regulatory prefer-
ences in the Court’s methods of statutory interpretation.”). Loper Bright did not reject the new
major questions doctrine; still, the possibility exists that Loper Bright may come to subsume the
major questions inquiry. See Merrill, supra note 19, at 270–71 (discussing this point).
155 See supra notes 137–42 and accompanying text.
88 HARVARD LAW REVIEW FORUM [Vol. 138:66

did not mandate a wholesale rejection of agency authority; it created a

new framework for evaluating that authority.
With a great debt to Merrill’s account of both Chevron’s “fall” and
Loper Bright’s “rise,”156 this Response has argued that the lasting suc-
cess of this new framework will depend on its workability, its fairness,
and its long-term political legitimacy. These elements, in turn, implicate
a constellation of interconnected issues: methodological choices about
statutory interpretation; the scope and strength of the nondelegation
doctrine; the capacity of courts to reach principled, consistent results
across ideological and geographical lines; whether the framework
produces systematic patterns of winners and losers; and whether and
from whom political pushback emerges to the new framework. Much
will depend on how Loper Bright interacts with this broader landscape
of administrative law and political economy as it evolves to a new
equilibrium.157
Managing these interlocking and shifting parts is no easy thing; each
part affects and is affected by all the others. The gravity of this chal-
lenge makes the self-conscious nature of Loper Bright’s “regime change”
all the more significant. In sharp contrast to the Court that decided
Chevron,158 the Loper Bright Court had in full view the enormous stakes
of the task it chose to undertake. And that fact saddles it with the moral
obligation of ensuring that the Loper Bright regime resists succumbing
to the fissures and pressures that ultimately sunk its ill-starred prede-
cessor. If the Court can absorb the lessons of Chevron’s demise as it
develops the Loper Bright framework, then Chevron’s most lasting leg-
acy will be the wisdom it left us in its passage.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
156 See MERRILL, supra note 3 (fall); Merrill, supra note 19 (rise).
157 I am indebted to Professor Richard Fallon for his thoughts on this point.
158 MERRILL, supra note 3, at 275, 279; id. at 280 (“The wonder of it all is that the Court that
rendered this decision had utterly no intention of producing the Chevron doctrine.”).