The University of New Hampshire Law Review
Abstract
The Supreme Court’s decision in Loper Bright to end formal deference under Chevron to administrative agencies’ interpretations of ambiguous statutes forces agencies into an unprecedented situation. Courts had deferred to agencies’ interpretations of binding rules since before the Administrative Procedure Act was passed. Now, for the first time, agencies are functionally unable to create new regulations with any confidence they will be upheld. This understanding is reinforced by the Court’s pivot to Skidmore deference. The Skidmore case, and Skidmore deference, only arose because the agency at issue in Skidmore had not been given the authority to create binding regulations by Congress.
After Loper Bright, all new regulations—historically the agency’s determination on the meaning of the statute after deliberation and public feedback—can no longer be expected to be upheld if challenged. The Court then extended this attack to nearly ALL regulations with the additional blow from Corner Post. Due to the divided nature of the country and the circuits, any regulation that is inconvenient to a party can now be challenged—and likely will be—in a favorable circuit, upending the agency’s determination.
In response, agencies will be forced to adapt by pivoting exclusively to interpretive rules. Interpretive rules reflect the agency’s current understanding of the statute but are not legally binding and can be updated as needed. Moving to interpretive rules would significantly speed up the rulemaking process because interpretive rules do not require the extensive notice and comment procedures that must be followed to create true legally binding regulations and do not require multiple rounds before finalization.
The ability to provide guidance quickly will be crucial, as these documents will need to be continually updated to reflect what will be a skyrocketing number of circuit splits. Since each circuit opinion will definitively interpret the law in that circuit unless the Supreme Court intervenes, agencies will need to be able to continually update these interpretive rules as well. This necessary elimination of notice and comment rulemaking will raise concerns about transparency, public participation, and the stability of government regulations. This Article examines these issues and outlines potential strategies for agencies to navigate in this new, unprecedented, post-Chevron world.