Chevron Is Dead, But the Bureaucratic Empire It Built Is Very Much Alive

In June 2024, the Supreme Court issued its ruling in Loper Bright Enterprises v. Raimondo, overturning the 1984 Chevron U.S.A., Inc. v. Natural Resources Defense Council decision that had, for forty years, instructed federal courts to defer to executive agency interpretations of ambiguous statutory language. Chief Justice John Roberts, writing for a six-justice majority, declared that courts — not bureaucrats — are the proper arbiters of what the law means. Conservatives celebrated. Constitutional originalists exhaled. And then, largely, Washington went back to business as usual.

Because here is what the celebration missed: the regulatory state was never solely a product of Chevron. It is a creature of institutional inertia, congressional abdication, and a political culture in which both parties have found it far more convenient to let agencies govern than to do the hard work of legislating. Killing the doctrine was necessary. It was not sufficient.

What Chevron Actually Did — And For How Long

To understand what was lost — and what remains — it helps to understand what Chevron actually authorized. The doctrine emerged from an environmental dispute over how the EPA defined a "stationary source" of air pollution under the Clean Air Act. The Court ruled that where Congress had left statutory language ambiguous, agencies possessed the authority to fill the gap with their own reasonable interpretations, and courts were required to respect those interpretations. The logic was superficially plausible: agencies have technical expertise; legislatures cannot anticipate every contingency; someone has to decide.

What followed was forty years of regulatory expansion that would have alarmed the doctrine's original architects. The EPA used deference to regulate carbon dioxide as a pollutant under a statute written before climate change was a political issue. The OSHA used it to extend workplace safety mandates into areas Congress never contemplated. The FCC used it to reclassify broadband internet as a telecommunications service, reversing its own prior interpretation, simply because a new administration preferred a different policy outcome. Chevron did not merely permit agencies to interpret ambiguous laws — it handed them a blank check to rewrite statutes they found inconvenient, provided they could construct a plausible legal rationale.

According to a 2022 analysis by the Competitive Enterprise Institute, federal agencies publish roughly 3,000 to 4,000 final rules per year, compared to fewer than 300 laws passed by Congress. The regulatory state, in other words, is not a supplement to democratic lawmaking — it has largely replaced it.

The Doctrines That Survived the Funeral

Here is the uncomfortable truth that the post-Loper Bright commentary has largely glossed over: Chevron deference was never the only mechanism by which courts deferred to agency judgment. Auer deference — established in Auer v. Robbins (1997) and reaffirmed in Kisor v. Wilkie (2019) — instructs courts to defer to an agency's interpretation of its own regulations, not just the statutes it administers. This is, if anything, more dangerous than Chevron, because it allows agencies to write vague rules and then serve as their own interpreters when those rules are challenged. The Supreme Court declined to overturn Auer in Kisor, choosing instead to narrow it — a compromise that left the doctrine operational.

Beyond Auer, courts have developed habits of deference that do not carry formal doctrinal labels. Judges routinely credit agency factual findings, defer to agency policy judgments on matters characterized as technical, and apply the arbitrary-and-capricious standard of the Administrative Procedure Act in ways that functionally protect agency decisions from meaningful judicial scrutiny. The architecture of deference is layered and redundant. Remove one pillar and the structure stands.

The Regulatory Empires That Chevron Built

Four agencies in particular built regulatory empires that dwarf anything Congress explicitly authorized: the Environmental Protection Agency, the Consumer Financial Protection Bureau, the Department of Labor, and the Securities and Exchange Commission. The EPA's regulatory reach under Chevron extended from the Clean Air Act to the Clean Water Act's definition of "waters of the United States" — a phrase that, under the Obama administration's expansive interpretation, would have subjected millions of acres of private farmland to federal permitting requirements. The Supreme Court struck down that particular overreach in Sackett v. EPA (2023), but the agency's regulatory portfolio remains vast.

The CFPB, created by the Dodd-Frank Act in 2010, operates with a degree of insulation from congressional oversight that the Supreme Court itself found constitutionally problematic in Seila Law v. CFPB (2020). Its director cannot be removed by the president except for cause — a structural arrangement the Court struck down — yet the bureau's regulatory output continues largely unimpeded. The DOL's overtime rules, fiduciary standards, and joint-employer definitions have reshaped labor markets in ways that Congress never voted on. The SEC has used its enforcement discretion to effectively regulate cryptocurrency markets through litigation rather than rulemaking, denying affected parties the procedural protections the APA is supposed to guarantee.

None of these regulatory empires dissolved when Chevron fell. The rules remain on the books. The enforcement mechanisms remain operational. The agencies remain staffed by career bureaucrats whose institutional incentive is expansion, not restraint.

What Real Deregulation Requires

The conservative movement has, at various points, treated judicial victories as substitutes for legislative action. They are not. Loper Bright changed the standard by which courts review agency interpretations — it did not repeal a single regulation. Genuine deregulation requires Congress to do something it has spent decades avoiding: reclaim its Article I lawmaking authority by writing specific, unambiguous statutes that leave agencies with less room to improvise.

The REINS Act — which would require congressional approval for any major rule with an economic impact exceeding $100 million — has passed the House multiple times and died in the Senate. Its logic is elementary: if a regulation has the force of law, the people's representatives should vote on it. Its failure is instructive. Many members of Congress prefer the current arrangement precisely because it allows them to take credit for broad legislative goals while escaping accountability for the specific regulatory costs those goals impose on constituents.

Beyond the REINS Act, a serious deregulatory agenda requires agency-by-agency statutory audits to identify rules that lack clear congressional authorization, aggressive use of the Congressional Review Act to nullify recent major rules, and a sustained executive commitment to reducing regulatory burden — not merely redirecting it.

The Verdict

Loper Bright was a genuine constitutional victory, a restoration of the separation of powers that Chevron had quietly eroded for a generation — but celebrating the death of a doctrine while leaving its regulatory offspring untouched is not conservative governance; it is conservative theater, and American businesses and workers deserve the real thing.