Loper Bright Enterprises One Year Later: The Practical Impact on Business, Consumers and Federal Agencies

Our podcast show being released today commemorates the one-year anniversary of the U.S. Supreme Court’s opinion in Loper Bright Enterprises - the opinion in which the Court overturned the Chevron Deference Doctrine. The Chevron Deference Doctrine stems from the Supreme Court's 1984 decision in Chevron v. Natural Resources Defense Council. The decision basically held that if federal legislation is ambiguous the courts must defer to the regulatory agency's interpretation if the regulation is reasonable. My primary goal was to identify a person who would be universally considered one of the country’s leading experts on administrative law and, specifically the Chevron Deference Doctrine and how the courts have applied the Roper opinion. I was very fortunate to recruit Cary Coglianese, Edward B. Shils Professor of Law at Penn Law School and Director of the Penn Program on Regulation. In this episode we explore two of his recent and widely discussed papers, titled “Loper Bright’s Disingenuity” and “The Great Unsettling: Administrative Governance After Loper Bright”

Here are the questions that we discussed with Professor Coglianese:

1. Let’s start at the beginning. What is the Chevron case all about?
2. How did the Court in Loper Bright explain why it was overruling Chevron?
3. You have a new article coming out later this year in the University of Pennsylvania Law Review called “Loper Bright’s Disingenuity,” co-authored with David Froomkin of the University of Houston. What do you and Professor Froomkin mean by the title of your article? 
4. In your article, you critique what you call the Court’s “facile formalism.” What do you mean by that?
5. You also criticize the way the Court based its decision in Loper Bright on the Administrative Procedure Act or APA. What exactly was problematic about the Court’s APA analysis? 
6. Let’s shift gears from your analysis of the logic of the Loper Bright opinion to talk about what the decision’s effects have been so far and what its effects ultimately might be on the future of administrative government in the United States. You have another article on Loper Bright that was recently published in the Administrative Law Review and coauthored with Dan Walters of Texas A&M Law School. It has another provocative title: “The Great Unsettling: Administrative Governance After Loper Bright.”  What do you mean by the “Great Unsettling”? 
7. Although you say that it is hard to predict exactly what impact Loper Bright will have on the future of administrative government, you also acknowledge that the decision has created a “symbolic shock” and is likely to “punctuate the equilibrium of the administrative governance game as we have come to know it.”  Can we see any effects so far in terms of how Loper Bright is affecting court decisions?  For example, let’s start with the Supreme Court itself. Has it had anything more to say about Loper Bright in decisions it’s handed down this past year?
8. If we look at the lower courts, what can we discern about how Loper Bright has been received in federal district courts or courts of appeals?  Are there any trends that can be observed?
9. I’d like to bring things full circle by raising a metaphor you and Professor Walters use in your article, “The Great Unsettling.” You say there that the Loper Bright “decision might best be thought of as something of a Rorschach test inside a crystal ball.” What do you mean? Can you tell us what you see inside your crystal ball?

Alan Kaplinsky, the founder and former chair and now Senior Counsel of the Consumer Financial Services Group hosted the podcast show.