The Looming Post-Chevron Fight Over the Administrative State

In the wake of the Supreme Court’s departing from Chevron deference, a new battle is brewing. Mere months after the court’s landmark ruling in Loper Bright Enterprises v. Raimondo, the government is continuing to claim broad regulatory powers — now motivated by the decision in Loper Bright itself.

In several cases, the government is taking an aggressive reading of Loper Bright’s acknowledgment that Congress sometimes delegates discretionary authority to agencies.

Courts should proceed with caution when evaluating these arguments, both to protect judicial authority and to safeguard the separation of powers. To start, courts should scrutinize the limits of delegations. Additionally, against the backdrop of a broader-scale constitutional revival, courts should be clear about the constitutional limits on delegation.