Some pundits and court watchers have asserted that the ruling in Loper Bright Enterprises v. Raimondo is likely to create chaos in heavily regulated industries. This seems unlikely as the court specifically stated that previous decisions under the Chevron doctrine will not be revisited. Courts may also still consider a federal agency’s interpretation of an unclear statute but will have to put more emphasis on the quality of research and reasoning behind that interpretation.
What the ruling does create, however, is an opportunity for states to assume a greater regulatory role in our federal system, particularly in areas where they already take the lead on policies that directly impact their economies and communities. Housing, education, land use and transportation are examples of areas where federal rulemakers might step aside and let states manage necessary regulations.
Not that federal rulemakers will necessarily be rushing to step aside. Another misplaced concern is that the rulemaking process at federal agencies will be drastically curtailed as a result of the Chevron ruling. It is probable that the pace of rulemaking will slow somewhat, and that isn’t necessarily a bad thing. According to data collected by the Regulatory Studies Center at George Washington University, there were more than 5,000 active regulatory actions in 2023 alone.
These thousands of rules and regulations were written by unelected members of the executive branch, which has no authority to create law and had no check under Chevron. Perhaps if federal agencies know they will not receive deference in legal action, they will focus on making and implementing rules specifically called for by Congress or where there is a consensus across branches of government and across party lines, rather than using federal agencies to circumvent the role of the legislative branch.
Furthermore, if rulemaking does slow down, that will provide more consistency for organizations in regulated industries, such as the commercial fishing enterprise that sued to overturn Chevron, as the rules and regulations with which they need to comply will stay the same over longer periods of time. If an issue is urgent, Congress can pass more-specific laws or expressly delegate distinct technical tasks to agencies, avoiding the issue of ambiguity that needs to be interpreted.
Under the Chevron doctrine, states, not just private entities, struggled to effectively challenge federal agency regulations, despite having their own authority to regulate. If federal agencies fear a backlog, they can easily delegate to the states, which have shown the capacity and desire to regulate themselves. Americans are likely to approve: Nearly two-thirds say that too many of our laws are in reality regulations made by unelected agency officials in Washington.
Additionally, Loper gives the final say to the most trusted arms of government. Nearly half of Americans have trust in the federal court system, compared to just 17 percent who trust regulatory agency officials. States and local governments are the most trusted governmental institutions, with 59 and 67 percent trusting them, respectively, and they are the least likely to see the kinds of trust declines that the federal executive and legislative branches have experienced in recent decades.
Under Chevron, federal agencies had a massive, unchecked power to regulate most aspects of American life. Loper does not take away government’s ability to regulate but rather insists that it is done with proper authority and thoughtfulness. Those losing this power are understandably upset, but Loper represented a return to balanced government that in the long term will create better regulations, with the likelihood that many of them will be made closer to home.
Governing’s opinion columns reflect the views of their authors and not necessarily those of Governing’s editors or management.
