After Chevron, the Fight Is Over What Counts as Law

The first post-Chevron fight is not whether courts now matter more. They do. The fight is over what replaces Chevron's shortcut: ordinary statutory interpretation, Skidmore persuasion, express delegation, major questions limits, or some new anti-deference clear-statement rule that Loper Bright itself did not announce.

The Supreme Court overruled Chevron on June 28, 2024, holding that the Chevron framework conflicted with Section 706 of the Administrative Procedure Act and that courts must exercise independent judgment on questions of statutory meaning; the Court also said agency interpretations may still receive Skidmore-style weight and that courts must respect statutory delegations of discretion when Congress has made them. 1 That is why the useful reading this week is not a victory lap on Chevron's death. It is a map of the replacement doctrines already competing for control.

Bernard W. Bell's Seton Hall Law Review symposium piece, summarized at Notice & Comment, is useful because it refuses to treat Skidmore as simply the pre-1984 baseline restored. Bell's point is institutional: the courts that will apply Skidmore now are more textualist, more comfortable with canons and plain-statement rules, and less likely than 1960s or 1970s courts to give practical agency judgment much gravitational pull. 3

That framing helps explain why post-Loper Bright litigation will not turn on the word "deference" alone. A court can say it is considering an agency's expertise under Skidmore, then give that expertise little weight because the court thinks statutory text, grammar, or a substantive canon has already settled the answer. The CRS report notes that lower courts have already taken mixed approaches to Skidmore, including cases treating long-standing or well-reasoned agency interpretations as persuasive and others emphasizing that such interpretations never have "the power to control." 1

The watch point: when a court says an agency interpretation is "persuasive," ask persuasive because of what. Consistency, contemporaneity, technical expertise, statutory fit, and procedural thoroughness are different reasons. They will not all lead to the same amount of agency room.

The Tax Law Center's post is a strong statement of the restrained reading: Loper Bright overruled Chevron, not the ordinary tools of statutory interpretation. On that view, courts still ask for the best reading of the statute, and sometimes the best reading is that Congress gave an agency discretion to define a term, fill details, or regulate under flexible language. 2

That is not pro-agency deference by another name. It is a different question. Chevron asked whether ambiguity triggered judicial deference to a reasonable agency view. The delegation argument asks whether the statute itself, read with ordinary interpretive tools, gives the agency a zone of discretion in the first place. The CRS report captures the same distinction: where Congress has delegated discretion, courts still fix the boundaries of that delegation and review whether the agency acted through reasoned decisionmaking inside those boundaries. 1

The watch point: briefs that treat every flexible statutory word as agency power are overclaiming. Briefs that treat Loper Bright as a clear-statement rule against delegation are also overclaiming. The real fight is more granular: which statutory features show discretion, and how broad is the grant?

Bell's Notice & Comment summary also flags a tension that will keep surfacing. Loper Bright insists courts can find a best legal meaning even when statutes are hard. The major questions doctrine, by contrast, often starts from the premise that some questions are too economically or politically significant to be resolved through general or old statutory language. 3

That tension matters because Congress is often gridlocked. Bell argues that recent major-questions cases have moved from looking at congressional action to treating congressional inaction as evidence that an issue is major. 3 If courts lean on inaction too heavily, agency authority can shrink precisely when Congress is least able to update old statutes.

The watch point: when a court invokes major questions after Loper Bright, separate two moves. One is textual: the statute, read normally, does not authorize the agency action. The other is structural: even if the words are broad, courts should expect Congress to speak more clearly. Those moves have different implications for agencies and for Congress.

The most interesting twist is that Loper Bright can be invoked by agencies and presidents, not only against them. The April 2025 White House memorandum directed agencies to identify regulations potentially unlawful under recent Supreme Court decisions, with Loper Bright first on the list, and said agencies should finalize repeals of facially unlawful rules without notice and comment where the APA's good-cause exception applies. 4

Cary Coglianese and Daniel E. Walters argue that this is part of Loper Bright's "great unsettling": a decision framed as constraining agency interpretive power may become justificatory cover for rapid deregulatory action based on agencies' own revised legal views. 5 Their point is not that every repeal will survive review. It is that the institutional game has changed: courts, agencies, presidents, regulated parties, and Congress are all trying to decide what Loper Bright authorizes them to do next.

The watch point: do not track only agency losses in court. Track agency legal memoranda, repeal rules, good-cause claims, and OIRA review. That is where the administrative state may adapt before a court ever reaches final judgment.

The CRS report lays out the congressional menu plainly: Congress can draft more specific statutes, use more express delegations, or attempt to codify Chevron or Loper Bright. 1 Those options differ sharply.

More specificity reduces agency room but raises drafting costs and makes statutes age faster. Express delegations preserve agency flexibility but invite the next fight over the scope of the delegation. Codification would be the cleanest institutional response, but it is also the most politically loaded because it asks Congress to choose a theory of judicial review directly.

For now, the best weekly signal is not a single headline case. It is the language pattern across cases and commentary: Skidmore, delegation, major questions, good cause, and statutory stare decisis. Chevron is gone. The administrative state is now being rebuilt through those smaller words.