Lexology July 8, 2024
Key Points
- Loper Bright’s overruling of Chevron will affect regulations that purport to “fill a statutory gap” or interpret ambiguous statutory terms/provisions but that lack express statutory authority.
- The decision will raise the bar for agencies like CMS and FDA when they are implementing laws where Congress left gaps or used undefined terms. Having a “permissible reading” is no longer enough; agencies must put forward the “best reading.”
- For the small subset of cases that make it to the Supreme Court, or implicate “major questions,” Loper Bright is not a sea change. The Supreme Court has not relied on Chevron since 2016, and the Court’s “major questions” doctrine had already eliminated agency deference.
- Many lower courts have continued to...
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