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Chairman Lankford, Ranking Member Fetterman, and Members of the Subcommittee:
Thank you for the opportunity to testify today on the implications of the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce (hereafter, Loper). I am Susan E. Dudley, founder of the George Washington University Regulatory Studies Center, distinguished professor of practice in the Trachtenberg School of Public Policy and Public Administration, and former administrator of the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB).
I have studied regulatory policy and practice for more than 40 years from positions in government, the private sector, and academia. I also recently served on two committees related to this topic: on a National Academies of Sciences, Engineering, and Medicine committee organizing a workshop exploring the implications of recent Supreme Court decisions for agencies responsible for protecting public health and the environment, and on a Bipartisan Policy Center (BPC) working group contributing to a report, Legislating After Loper: Practical Solutions for a Post-Chevron Congress.
The Supreme Court’s 2024 decision in Loper overturned the 40-year-old Chevron doctrine that directed judges to defer to agencies’ interpretations of ambiguous statutes. As it is further interpreted by Courts, this decision could have significant ramifications for the practice of regulation and the role of bureaucratic expertise, but perhaps not as dramatic as either proponents or opponents suggest. While judges may give less weight to agencies’ interpretations of what regulatory actions their authorizing statute allows, other aspects of agency expertise will still likely receive significant deference.
My written testimony begins with a review of what the Loper decision might mean for judicial deference to agencies, and then offers recommendations for how Congress can reduce statutory ambiguity while still respecting and engaging the expertise executive agencies provide.
Loper's effect on agency decision making
When developing and justifying new regulations, agencies must 1) work within their statutory authority, 2) examine and translate factual and technical information to identify approaches to addressing the statutory goals, and 3) make policy judgments regarding which regulatory approach will best meet their statutory obligations and serve the public interest.
agencies have enjoyed considerable deference in all these areas on the grounds that their expertise and their accountability to the people through the elected president of the United States made them well suited to act in the public interest. The Loper decision last year overturned deference to agencies’ interpretations of what their statutes authorize, holding that courts are in the best position to decide “what the law is.” However, nothing in that decision is likely to alter the deference courts give to agencies in the other two areas—factual expertise and policy judgment.
Just as no one predicted the impact of the Chevron decision 40 years ago, no one knows how the different branches will respond in the long run to the Loper decision. In the short term, a recent survey found that, while lower courts across the country vary in the specifics of how they are responding to the decision, they are “invalidating [new administrative rules] almost 84 percent of the time.” The executive branch is also responding. An April 2025 presidential memorandum directed federal agencies to review existing regulations that may be contrary to the Loper decision and consider repealing them.
As for Congress, legislators will no longer be able to pass ambiguous laws with the expectation that agencies’ interpretations will get deference in subsequent litigation; however, I do not think statutory language will have to be detailed and precise. Statutes that delegate broad authority could give deference to agency expertise, as long as the statutory language is not ambiguous.