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, 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 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.
