In late June, the Supreme Court overturned the landmark Chevron v. NRDC decision, ending a 40-year precedent that federal courts should defer to agency interpretations of unclear laws so long as the interpretations are "reasonable." 

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While Chevron shifted power to the regulatory agencies, Loper has shifted it back to the courts and Congress. Courts must once again use their own independent judgments to determine whether an agency’s interpretation is correct. Courts might not be experts on matters of fact at issue in a case, but as the Loper decision states, courts are the final interpreters on matters of law, an idea affirmed since Marbury v. Madison and the Federalist Papers. [1]

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After 40 years, nearly all federal regulators, judges, and legislators today have never known any regulatory process without Chevron. As federal officials begin this next chapter in the practice of regulation, we can look for guidance back to pre-Chevron practice and to the various approaches of the "laboratories of democracy," the states.

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Since 1999, 16 states have rejected or restricted their own, state-level Chevron deference, either through their courts or through the legislative process. These include states that are red, blue, and purple alike. [2] Most states, however, still have their own version of Chevron deference in place for state regulations.

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The first state to reject a Chevron-like standard for its state agencies was the reliably blue home state of President Biden, Delaware. In 1999, the Delaware Supreme Court ruled in Public Water Supply v. DePasquale that Delaware courts must use their own independent judgments in reviewing state regulations. [3]

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The Michigan Supreme Court followed suit in 2008, [4] as did the Utah and Kansas Supreme Courts in 2013 and the Mississippi Supreme Court in 2018. [5] The Utah Supreme Court explicitly rejected Chevron deference as well as Auer deference in 2015. Auer deference is when a court defers to an agency when its own rules are ambiguous. [6] Mississippi also rejected Auer deference in 2021 and Ohio did the same in 2023.

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In 2018, Governor Doug Ducey of Arizona signed into law the first state-level ban on judicial deference, albeit with notable exceptions for healthcare and public utility matters. [7] That same year, the people of Florida banned judicial deference via ballot measure, and the Wisconsin legislature codified a Wisconsin Supreme Court ruling that did the same. [8]

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In 2020, the Arkansas Supreme Court rejected Chevron deference. In 2021, Governor Brian Kemp of Georgia signed a law forbidding deference in tax matters. The Colorado Supreme Court rejected Chevron deference as binding. [9]

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In 2022, Tennessee passed a ban on Chevron deference in the state. This Spring, Nebraska, Indiana, and Idaho followed suit.

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Congress would do well to learn from the experiences of these states in a post-Chevron world—experiences that have been far from uniform. It is important to note that deference applied equally to regulatory efforts and to deregulatory efforts.

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Congress can respond to the Loper decision in several ways. Congress could amend Section 706 of the Administrative Procedures Act, which the Court cited in Loper, to specify what deference, if any, courts ought to give to agencies. Congress could explicitly restore or ban any standard of deference it chose, including Chevron deference, Auer deference, or Brand X deference (deference to an agency even when its rules conflict with prior judicial precedent), just to name a few. Or Congress could simply do nothing and leave the Loper case as a controlling precedent for challenges to regulations.

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