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.

How should one think about Loper Bright? On its face, Loper Bright is a meaningful yet measured Supreme Court decision that requires agencies to act consistently with the best statutory readings. But for some, the opinion reads as a lifeline in a decades-long project to tear down the administrative state—a project whose ambitions may paradoxically be complicated by the constraints of Loper Bright itself.

Senator Eric Schmitt (R-Mo.) falls into the latter camp. In his report of the working group that he formed in response to Loper Bright, Senator Schmitt calls on Congress to “reorganize and replace our out-of-touch, unaccountable, and expensive bureaucratic elite that populate the Administrative State.” Since Loper Bright itself does no such thing, the Senator endorses a series of legislative efforts to further hamstring administrative agencies.

That legislation remains on the shelf despite Republican-led attempts to pass some of it in this summer’s reconciliation bill. Yet over the past nine months, President Trump has taken Senator Schmitt’s project into his own hands by dismantling administrative programs and agencies—often in violation of Congress’s legislative commands and judicial interpretations. Despite praising Loper Bright for hewing the Executive Branch closer to legislative directives, Senator Schmitt offers only support for President Trump’s unilateral actions.

This is Loper Bright’s paradox: the anti-regulatory forces that supported it most are now violating it repeatedly to restrict administrative agencies. How proponents of sensible, evidence-based environmental, health, and consumer safeguards respond to the Trump Administration’s actions—and what counter-vision they put forward to reenvision the administrative state post-Chevron—will help determine the fate of that anti-regulatory project.

What Loper Bright Commands

In Loper Bright, the Supreme Court overruled the Chevron doctrine, under which courts deferred to agencies’ reasonable interpretations of ambiguous language in statutes they administer. Loper Bright instructs courts to instead determine the “best reading” of statutory language without deference to the agency’s interpretation. While this holding applies moving forward, the Supreme Court indicated that prior judicial holdings relying on Chevron deference remain good law, giving them stare decisis effect.

Loper Bright was premised on the commonsense notion that not all statutory ambiguities amount to intentional legislative delegations. At the same time, Loper Bright recognized that many statutes intend to delegate broad authority to agencies, with the enacting Congress recognizing that the expert agency is best situated to address key issues subject to statutory limits. Loper Bright properly recognized that Congresses have not adopted a one-size-fits-all legislative approach: some statutes confer broad authority while others delegate more narrowly. To remain faithful to congressional intent, administrative agencies must assess the boundaries of that authority and operate within them.

While Senator Schmitt’s report lambastes administrative agencies under the Biden Administration for being “unprepared” for and “hostile” to Loper Bright, this claim elides a crucial fact: by the time of the Court’s decision, agencies were already acting against the backdrop of Chevron’s erosion. Agencies under the Biden Administration therefore generally defended rules based not on invocations of deference but on detailed statutory, factual, and scientific records. For some of the most significant and beneficial regulations, the issuing agency offered an extensive and convincing account of how the rule was consistent with prior agency practices and legislative intent.

The Trump Administration’s Misapplication of Loper Bright

While the Biden Administration’s reliance on Chevron was limited, the same cannot be said of the Trump Administration’s opportunistic and misguided invocations of Loper Bright. In environmental, health, consumer protection, and other areas, agencies are deregulating far beyond what statutes anticipate and Loper Bright requires, often misusing Loper Bright to support deregulatory efforts.

For instance, the Environmental Protection Agency repeatedly invoked Loper Bright in proposing that the Clean Air Act does not permit regulation of greenhouse gas emissions from motor vehicles, claiming that the case stands for the proposition that agencies “can no longer rely on statutory silence or ambiguity to expand [their] regulatory power.” But this was not Loper Bright’s holding; rather, the case called for using “all interpretive tools” to assess the best statutory reading. And here, statutory text, case law, legislative history, and regulatory precedent all support EPA’s authority to regulate motor vehicle greenhouse gas emissions. Indeed, the Supreme Court repeatedly found that the Clean Air Act clearly authorizes EPA to regulate such emissions.

In another example, multiple Trump Administration agencies are arguing that Loper Bright requires them to rescind longstanding regulations protecting endangered species because, in their view, those protections are inconsistent with the best reading of the statute. But the Supreme Court upheld those regulations under Chevron, and Loper Bright recognizes that prior decisions relying on Chevron remain good law. While the Trump Administration could argue that the statute allows it to rescind these regulations in its reasoned discretion, it cannot argue under Loper Bright that the statute requires it to rescind these regulations and that the agency therefore cannot consider the policy’s consequences in issuing that rescission.   

In many other cases, the Executive Branch is flouting legislative command in its deregulatory haste without expressly invoking Loper Bright. The efforts to dismantle agencies like the Consumer Financial Protection Bureau and Department of Education widely disregard Congress’s directions in creating those agencies and imbuing them with substantial authority. And in rolling back rules across the regulatory landscape, the Trump Administration has consistently flouted the Administrative Procedure Act’s notice-and-comment requirements that have guided agencies for nearly 80 years.

In an ironic twist, the response of Senator Schmitt and this Congress’s majority ranges from silence to applause. While Schmitt commends Loper Bright for helping to restore legislative supremacy, his report cheers the Trump Administration’s executive overreach when it aligns with his deregulatory agenda. That is not faithful to Loper Bright, but rather reflects an extreme ideology that sees little merit in many regulatory programs.

Meeting the Moment

Senator Schmitt’s report does contain an important truth: administrative law is at a crossroads. His response is to further hamper administrative agencies through extensive legislation. But his report rehashes old ideas that repeatedly failed to obtain sufficient legislative support and that are likely to exacerbate uncertainty and harm the health and safety of Americans.

A few examples of the legislation that the Senator endorses illustrate this point. In its recent form, for instance, the REINS Act would automatically sunset each provision in the Code of Federal Regulations unless Congress reaffirms it, undermining deliberative governance and creating enormous regulatory uncertainty. (It is not entirely clear if Senator Schmitt endorses this version or the Act’s earlier version, which applied only to future regulation.) The CRA Modernization Act would eliminate the time limit on congressional disapproval under the Congressional Review Act, allowing legislators of both parties to disapprove of longstanding regulatory and deregulatory actions in potentially contradictory ways. The widespread use of the CRA to disapprove of older regulations could effectively nullify some statutes without any legislation to that effect, since CRA resolutions prohibit the agency from enacting similar regulations in the future. The D.C. Circuit Jurisdiction Reform Act would strip the nation’s preeminent appellate court of much of its jurisdiction, offering litigants even more opportunities to select the friendliest judicial forum. While the most ardent opponents of evidence-based regulation will likely cheer these proposals, they are highly unlikely to produce thoughtful outcomes or garner bipartisan support.  

A more serious vision for reform would grapple with the significant instability that administrative agencies face and empower government to responsibly address modern challenges. Such an effort is overdue. In recent years, the Supreme Court (sometimes with the help of lower courts) has reshaped administrative law by creating or reinvigorating doctrines, like the major questions doctrine, that limit agency authority while creating significant policy uncertainty. Meanwhile, litigants are engaged in aggressive forum-shopping in search of friendly courts, leading to a patchwork of rulings that further tie agencies’ hands. And with Congress mostly stagnant, agencies are often operating under old statutes that were not fine-tuned for today’s challenges.

A well-crafted reform effort would respond to these problems by fostering regulatory stability and empowering government to help solve today’s challenges. Senator Schmitt unfortunately does not offer that vision. But his report offers a powerful reminder that proponents of stable and effective governance cannot cede the floor for administrative reform to his anti-regulatory movement.

Richard L. Revesz is the AnBryce Professor of Law and Dean Emeritus at New York University School of Law, where he serves as the Faculty Director of the Institute for Policy Integrity. He was the Administrator of the White House Office of Information and Regulatory Affairs (OIRA) between January 2023 and January 2025. Max Sarinsky is the Regulatory Policy Director of the Institute for Policy Integrity and an adjunct professor at New York University School of Law. He served as Senior Advisor at OIRA from May 2024 to January 2025.