This post is part of Notice & Comment’s symposium on the Senate Post-Chevron Working Group Report. For other posts in the series, click here.

Senator Eric Schmitt’s Post-Chevron Working Group Report is live. The document (and the lead-up to its publication) reflects a careful process of congressional engagement with a landmark decision of the Supreme Court—Loper Bright Enterprises v. Raimondo. Indeed, Senator Schmitt’s Working Group did exactly what scholars of the regulatory state hope that Congress will do more: think critically about the legislative branch’s role amid important developments in administrative law and statutory interpretation. Happily, the executive branch has taken a close look at Loper Bright, too.

Yet the political branches’ initial engagement with Loper Bright indicates that the ruling may be perceived as more than just a change in the judicial branch’s approach to regulatory litigation. The Working Group Report (as well as recent executive action by President Trump) sees Loper Bright as something else: evidence that the Code of Federal Regulations is littered with unlawful regulations that are inconsistent with their respective underlying statutes—and therefore must be repealed.

Loper Bright was a watershed moment in the history of American law. And formally, the decision stands for a new legal rule: In regulatory litigation under the Administrative Procedure Act, courts should not defer to agency interpretations of law. True, the Court’s opinion made some caveats—e.g., prior Chevron-grounded rulings are entitled to stare decisis, and Congress might delegate interpretive discretion to an agency. But the ruling is, in one sense, a rather straightforward doctrinal shift.

In a different sense, however, Loper Bright is another thing altogether: a smoke signal. Loper Bright abrogated the doctrine associated with the Supreme Court’s 1984 decision in Chevron v. NRDC, pursuant to which courts would defer to reasonable agency interpretations of ambiguous statutes—even if those interpretations did not reflect the best reading of the underlying statutes. Courts took Chevron’s rule of deference and ran with it; in 2017, Kent Barnett and Chris Walker described Chevron as “one of the most cited Supreme Court decisions of all time.” That demonstrates that courts resorted to Chevron deference regularly in regulatory cases, and it further evinces that agencies relied on Chevron frequently when issuing regulations.

Loper Bright’s abrogation of Chevron deference is therefore meaningful for what it indicates about these regulations. In an op-ed written just weeks after the 2024 election, Elon Musk and Vivek Ramaswamy previewed their plans for the Department of Government Efficiency (commonly known as DOGE) by noting that Loper Bright and the Court’s earlier decision in West Virginia v. EPA “suggest that a plethora of current federal regulations exceed the authority Congress has granted under the law.” They remarked that “President Trump … can, by executive action, immediately pause the enforcement of those regulations and initiate the process for review and rescission.” Musk and Ramaswamy’s view of Loper Bright framed the decision as calling attention to a practice that had been potentially widespread over the last 40 years: the adoption of unlawful regulations by administrative agencies.

Of course, Loper Bright does not itself necessarily prove that this practice has happened. But the decision provides important evidence for the proposition that many regulations on the books today exceed their asserted statutory authority. And if that proposition is correct—if a substantial number of regulations are unlawful—then the political branches have some work to do.

The Working Group’s Report also sees Loper Bright as not only a new approach to judicial review of agency action but also a call to arms. The Report declares that “Congress must act” now that the Supreme Court has handed down its ruling. The Report states that on July 11, 2024, the Working Group “sent a letter to the 101 agencies and subagencies that have, since the year 2000, published more than fifty final rules in the Federal Register that carry the force of law.” The letter asked each agency and subagency whether it was conducting a review of its regulatory activity undertaken prior to Loper Bright, and the Report lauded the Federal Trade Commission (among others) for declaring that the agency had “not relied on Chevron deference to support its interpretation of any of its statutory authorities, either in a rulemaking context or in an enforcement action.” The corollary here is that if an agency had relied on Chevron deference, its resulting regulations might be suspect.

Mere reliance on Chevron deference does not mean that an agency’s regulation is unlawful. But that reliance does at least suggest that the regulation might be unlawful. Before Loper Bright came down, an agency could have promulgated a regulation based on the best interpretation of the statute yet asserted Chevron deference as a backup justification. But the agency just as easily could have relied on Chevron because it knew that its reading of the statute was a stretch. Thus, Loper Bright’s abrogation of Chevron deference means that a lawyer should pause—and look more closely—when seeing that a regulation explicitly relied on Chevron (or, to take it a step further, when seeing that a regulation was issued during the Chevron era). Like how the United States Code “is ‘prima facie’ evidence of law, not the law itself,” reliance on Chevron (either explicit or implicit) is perhaps evidence of unlawfulness, even if such reliance does not conclusively demonstrate that a regulation is inconsistent with law.

Loper Bright has called out a potentially massive problem. If thousands of judicial decisions felt the need to resort to Chevron deference to uphold a regulation, then perhaps the regulations at issue in those cases were not lawful. Loper Bright establishes a new standard for what is lawful in terms of regulation. Congress is now doing its due diligence to discover the extent of the problem, and Loper Bright has spurred the legislature to action. That Senator Schmitt and the Post-Chevron Working Group have taken on the task is encouraging.

The executive branch has also come to see Loper Bright as more than just a judicial decision articulating a new standard of review in agency cases. In April, President Donald Trump issued a memorandum directing agencies to repeal unlawful regulations. The memorandum stated that “[t]his review-and-repeal effort shall prioritize, in particular, evaluating each existing regulation’s lawfulness under” several Supreme Court decisions, including Loper Bright. Loper Bright does not—on its own—render any regulations invalid. But the executive branch views the decision as suggesting that a host of regulations are not “lawful” as the term is properly understood.

The “evidence of unlawfulness” reading of Loper Bright suffuses the Working Group Report—as might be expected. Justice Frankfurter is famous for writing in Universal Camera Corp. v. NLRB that Congress had “expressed a mood” involving the standard of review of agency factual conclusions. Reading the Musk and Ramaswamy op-ed, the presidential memorandum, and the Working Group Report, one might conclude that the Supreme Court expressed a “mood” as well in Loper Bright: the era of overregulation is over, and agencies must return to the statutory text.

Eli Nachmany is an attorney in Washington, D.C., where he practices regulatory litigation.