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Loper Bright halted the FDA’s attempted regulatory expansion into laboratory testing services. It was also the subject of a new law review article in the West Virginia Law Review and in Yale’s Notice and Comment blog.

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** Texas District Court Applies Loper Bright To Reject FDA’s Unlawful Expansion of Its Regulatory Jurisdiction
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AFP Foundation’s Michael Pepson ([link removed]) writes on American Clinical Laboratory Ass’n v. FDA ([link removed]) , where a Texas district court properly relied on Loper Bright to reject the FDA’s attempted ultra vires expansion of its jurisdiction under the Food, Drug, and Cosmetic Act (“FDCA”) to regulate, for the first time, laboratory testing services as manufactured “devices.”

There was once a time when the FDA’s decision to unilaterally expand its regulatory jurisdiction without Congress’s permission might well have stood on firmer footing. It bears reminding that until Loper Bright, federal courts were required under Chevron to defer to federal agencies’ views on what ambiguous statutes mean, so long as those views were deemed “reasonable.” In practice, Chevron deference often meant that the judiciary would rubber-stamp an agency’s power claims. Indeed, the Supreme Court expanded the scope of the Chevron doctrine in 2013 in City of Arlington v. FCC ([link removed]) , ruling that federal courts were required to defer to agencies’ assertions of regulatory jurisdiction under certain circumstances.

That all changed in 2024 when the Loper Bright ([link removed]) court overruled Chevron and held that courts may no longer “defer to an agency interpretation of the law simply because a statute is ambiguous.”

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This decision is a useful illustration of Loper’s impact—even before it was decided. If this case had been decided a decade ago, Chevron and City of Arlington would have been front and center—likely the agency’s lead argument. Today, those cases—and the agency fox-in-the-henhouse syndrome—are no more and Loper Bright rules the roost of statutory interpretation.
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** Scholars and Practitioners Grapple with Future of Loper
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Pacific Legal Foundation’s ([link removed]) Will Yeatman and Charles Yates write in Notice & Comment ([link removed]) about how Bondi v. VanDerStok ([link removed]) “has the potential to dent the arc of administrative law.

Following Loper Bright, the Justice Department started probing the viability of alternatives to the Chevron doctrine. For example, since Loper Bright, the government has reframed questions of statutory interpretation as policy decisions subject to deferential “arbitrary and capricious” review.

The Salerno standard is another Chevron replacement that has been shopped by the government in the wake of Loper Bright. For example, last year in a challenge ([link removed]) brought by Pacific Legal Foundation (where we work) to a 2023 Environmental Protection Agency and Department of the Army Clean Water Act regulation, the Justice Department invoked the “no set of circumstances” standard as a reason for that challenge to fail. Of course, the Salerno approach is unique among these Chevron substitutes, in that the “no set of circumstances” framework is far more favorable to the government than even Chevron ever was.
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Liberty University School of Law’s Eric Bolinder ([link removed]) published a new paper on “Litigating After Loper ([link removed]) .” Bolinder previously represented the fishermen in Loper while at Cause of Action Institute and argued the case before the D.C. Circuit.

This article arrives at a critical juncture in Administrative Law and comprehensively answers two burning questions about Loper Bright Enterprises v. Raimondo, the case that overturned Chevron deference. First, what did Loper Bright change about review of agency action? Second, how should lower courts implement the decision? This paper engages a first-of-its-kind, exhaustive review of the major circuit court decisions citing Loper Bright and analyzes how influential judges, scholars, and justices have characterized the impact of the decision. The article defines what role Skidmore “deference” and the major questions doctrine should play in judicial review—while seriously questioning the long-term viability of the latter.
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ICYMI: AFP Foundation’s Cindy Crawford ([link removed]) also wrote about Bondi v. Vanderstock ([link removed]) .
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