Chevron Runs Out of Gas: The Bumpy Road Ahead for Health Regulations After Loper Bright

Lexology July 8, 2024
Akin Gump Strauss Hauer & Feld LLP

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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