However, under many laws, businesses and individuals can also challenge an agency interpretation at the moment when the agency decides that a general regulation applies specifically to them. These are called “as applied” challenges. After Loper Bright, any time an agency that benefited from Chevron deference goes to apply its interpretation to a new regulated entity, that regulated entity can challenge the agency interpretation – and this time the agency won’t get Chevron deference.

Eliminating Chevron deference will likely worsen an existing division among judges, and justices, about how to go about interpreting statutes. It centers on how much a statute’s purpose and context should matter – or, instead, how much the judge should focus on the “plain meaning” of the particular words that Congress chose to use.

Suppose, for example, that a federal court faced the issue of how to define a vegetable for purposes of determining whether import taxes apply to imported tomato sauce. A plain meaning approach would emphasize that Congress decided to tax vegetables and that tomatoes are fruits; hence, tomato sauce is not subject to the import tax.

An approach focused on Congress’ purpose, in contrast, would emphasize that Congress wanted to tax all imports of savory foods that the public generally considers to be vegetables. Using this approach, the Supreme Court in 1893, in fact, decided that tomatoes were vegetables subject to import taxes.

Federal agencies typically take Congress’ purpose and the context in which regulators act very much into account when they decide what laws mean. For example, when the Food and Drug Administration had to distinguish proteins, which qualify as biologics for regulatory purposes, from chains of amino acids, which qualify as drugs, it focused on Congress’ reasons for creating the two categories. Ultimately, the agency decided that a molecule made up of amino acids had to have a certain level of complexity to qualify as a protein, and hence a biologic.

In contrast, ever since the late Justice Antonin Scalia joined the Supreme Court in 1986, federal judges – and especially Supreme Court justices – have taken an increasingly “plain meaning,” or textualist approach, to statutory interpretation. The current Supreme Court, for example, would almost certainly never have allowed a tomato to be a vegetable.

Dissenting Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown-Jackson, along with many other legal experts, foresee serious problems for future cases that turn on highly technical issues. What will happen when a statute’s nonexpert plain meaning makes no practical sense in a highly technical or scientifically nuanced regulatory regime, such as the FDA classifying biologics and drugs?

This ruling also may signal that the court plans to pay greater attention to the 1946 Administrative Procedure Act’s primacy in federal administrative law. This statute had been in place for almost 40 years when the Supreme Court decided Chevron in 1984, and the Chevron majority did not see it as a problem at the time.

Now, however, it has become a reason to overturn Chevron deference. Other court-created glosses on administrative law may also be dead doctrines walking.

Congress can and has created different standards of review in other statutes, including the Clean Air Act that led to the Chevron decision. What if a future Congress specifically directs that the implementing agency should take the lead in interpreting a particular statute?

I expect that the Supreme Court would reach for the Constitution and declare any such delegation unconstitutional. In other words, it is probably only a matter of time before Loper Bright’s overruling of Chevron deference becomes a matter of federal constitutional law.

This is an updated version of an article originally published January 17, 2024.

This article is republished from The Conversation, a nonprofit, independent news organization bringing you facts and analysis to help you make sense of our complex world.

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Robin Kundis Craig does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.