The Aftermath of Loper Bright: The Demise of Deference Will Make No Difference in Securities Law
Year: 2025
Type: article
Abstract: Justice Roberts was referring to the standard for judicial review set forth in section 706 of the Administrative Procedure Act (APA).In relevant part, section 706 provides:To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.The reviewing court shall . . .(2) hold unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in SETON HALL LAW REVIEW [Vol.55:5 branch "may help inform" the courts, "courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous."5 The Chief Justice wrote that Chevron deference "cannot be reconciled" with the standard of judicial review for agency actions prescribed by the Administrative Procedure Act (APA), namely that "the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions" and to "hold unlawful and set aside agency action, findings, and conclusions found to be . . .not in accordance with law." 6 Many observers described the Court's ruling in Loper Bright in apocalyptic terms for the "administrative state": 7 "A Massive Shock to the Legal System"; 8 an "'earth-shattering' blow to federal agencies' administrative powers"; 9 a "seismic" ruling that "guts agency power;" 10 and a "Brave New World" in which "The Supreme Court Torpedoes the 'Administrative State.'"11 Contrary to these dystopian forecasts of regulatory impotence, the demise of Chevron deference will have minimal impact on how the securities laws are interpreted, the scope of their application, or the accordance with law. . .(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right. . . . 5 U.S.C. §706 (2024).5 Loper Bright, 144 S. Ct. at 2273.6 Id. at 2261, 2265.7 The Orwellian-sounding term "administrative state" is used often as a shorthand description for independent regulatory commissions and other government agencies that exercise executive, quasi-judicial, and quasi-legislative powers.See, e.g., Richard A. Epstein, Why the Modern Administrative State is Inconsistent with the Rule of Law, 3 N.Y.U.J. L. & LIBERTY 491, 496 (2008).8 "A Massive Shock to the Legal System": Supreme Court Supermajority Significantly Curtails Administrative Agency Authority in Loper Bright with Momentous Impact on Federal Tax System, VINSON & ELKINS (July 1, 2024) (quoting Loper Bright, 144 S. Ct. at 2295 (Kagan, J. dissenting)), https://www.velaw.com/insights/a-massive-shock-to-the-legal-system-supreme-court-supermajority-significantly-curtails-administrative-agencyauthority-in-loper-bright-with-momentous-impact-on-federal-tax-system.
Source: Seton Hall Law Review
DOI: 10.60095/ggpd3049
Author: Dan Berkovitz
Institution: Columbia University
Language: English
Field: Social Sciences
Domain: Social Sciences
Open Access status: bronze
OpenAlex ID: W4410816450