Loper Bright's actual impact on agency deference has hardly been clear. Because while the majority opinion said it was overruling Chevron, a conspicuous paragraph in the middle of the Court's analysis seemingly reformulated Chevron, just under a new citation in the United States Reports. This paragraph—and other language in the opinion—led to Adrian Vermeule's post: Chevron By Any Other Name.
The paragraph from Loper Bright said:
In a case involving an agency, of course, the statute's meaning may well be that the agency is authorized to exercise a degree of discretion. Congress has often enacted such statutes. For example, some statutes expressly delegate to an agency the authority to give meaning to a particular term. Others empower an agency to prescribe rules to "fill up the details" of a statutory scheme, or to regulate subject to the limits imposed by a term or phrase that leaves agencies with flexibility, such as "appropriate" or "reasonable." When the best reading of a statute is that it delegates discretionary authority to an agency, the role of the reviewing court under the APA is, as always, to independently interpret the statute and effectuate the will of Congress subject to constitutional limits. The court fulfills that role by recognizing constitutional delegations, "fix[ing] the boundaries of [the] delegated authority," H. Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 27 (1983), and ensuring the agency has engaged in "reasoned decisionmaking" within those boundaries. By doing so, a court upholds the traditional conception of the judicial function that the APA adopts.
(Citation modified.) So Loper Bright overruled the part of the Chevron framework that rested on statutory ambiguity as a trigger to defer to agency interpretations. But Loper Bright did not overrule agency deference in toto.
For that reason, when a case that was decided before Loper Bright gets re-litigated on the same facts and issues, it's worth analyzing. That happened in Hospital Menonita de Guayama, Inc. v. National Labor Relations Board (D.C. Cir., No. 22-1163, July 21, 2026).
The Majority
The National Labor Relations Board adopted a rule requiring new owners of a business to negotiate with the incumbent union for up to one year, whether or not a majority of the employees supported that union. The Hospital challenged this "so-called 'successor bar'" as inconsistent with the National Labor Relations Act. On the initial round of litigation, the D.C. Circuit implicitly applied Chevron deference and upheld the rule because the Court found that the rule was a reasonable policymaking decision. But the case was appealed and the Supreme Court granted certiorari, vacated the ruling, and remanded it "for further consideration in light of" Loper Bright.
In the latest opinion, the D.C. Circuit now holds that the rule violates the National Labor Relations Act.
The court:
Under the successor bar, when a new employer acquires a business, an incumbent union is protected from any representation challenge for up to one year. The bar thus compels the successor employer to recognize and bargain with the incumbent union, even if it lacks majority support. That rule is inconsistent with the Act's protection of employee freedom of choice and representation by majority rule. The Board therefore contravened the Act when it refused to consider the Hospital's evidence challenging the Union's majority status and ordered the Hospital to collectively bargain with the Union.
The court reasoned that, aside from a one year period after a certified election, Congress did not provide other restrictions on when a union's majority status can be challenged. Applying a potentially helpful canon to post-Loper Bright delegations, the court explained, "When Congress establishes a legal requirement and provides a single exception, the most natural interpretation is that an agency cannot create additional exceptions to the statutory rule."
The Dissent
But the dissent argues that there was nothing flawed with the original opinion because the panel did not rely on Chevron's premise that statutory ambiguity itself creates a delegation to the agency. (Which, as discussed above, was what Loper Bright expressly overrules.) Rather, the dissent contextualizes the original opinion as relying on the NLRA's overarching policy of entrusting to the NLRB substantial policymaking discretion.
The dissent cites the panel opinion explaining as much:
"Because 'the NLRB has the primary responsibility for developing and applying national labor policy,' the Supreme Court has required that reviewing courts 'accord[] Board rules considerable deference.'" Hospital Menonita I, 94 F.4th at 14 (alteration in original) (quoting Curtin Matheson, 494 U.S. at 786).
In support of that argument, the dissent cites three post-Chevron cases that interpreted challenges to NLRB's rule and upheld them all, not on Chevron deference grounds per se, but because "[i]f the Board adopts a rule that is rational and consistent with the Act . . . then the rule is entitled to deference from the courts."
The dissent then interprets the passages in Loper Bright that have created confusion about the scope of agency deference. It explains that Loper Bright "preserved the distinct principle that Congress may confer discretionary authority on agencies in particular statutory schemed [sic]. The proper inquiry is not whether the statute is ambiguous, but whether 'the best reading of a statute is that it delegates discretionary authority to an agency.'" This was essentially Vermeule's point. He wrote, "What this means is that many, most or even all of the cases that were previously called 'Chevron deference' cases can now be relabeled as 'Loper Bright delegation' cases."
Loper Bright's Impact
I agree with both opinions. The dissent properly states the rules from Loper Bright: statutory ambiguity does not call for agency deference, but nonetheless the best meaning of the statute can be one that requires the agency to be given deference. The problem for the dissent is with the rest of the Loper Bright opinion.
Specifically, the Chief Justice charges lower courts to police the outer bounds of Congress's delegation to agencies. And it is hard to reconcile a rule from the NLRB that conflicted with the free-choice guarantee of section 7 and the majority-rule principle of section 9(a) of the NLRA. Therefore, the delegation is contrary to law because it expressly contradicts the statutory scheme.
And this is not a case involving a statutory scheme that expressly delegates to the agency some reasonable policy discretion, like what Justice Kagan hypothesized in her Loper Bright dissent:
Congress directed the Department of the Interior and the Federal Aviation Administration to reduce noise from aircraft flying over Grand Canyon National Park—specifically, to 'provide for substantial restoration of the natural quiet.' How much noise is consistent with 'the natural quiet'? And how much of the park, for how many hours a day, must be that quiet for the 'substantial restoration' requirement to be met?
That example is more along the lines of the outcome in Relentless (the companion case in Loper Bright and the name that should have been used as the caption) after Loper Bright was decided, which on remand came out in favor of the government again because the court held that the best reading of the statute was that Congress gave the agency the ability to exercise discretion.
Nonetheless, this D.C. Circuit opinion is still fascinating because it is one of many that will come in the long line of cases exploring what Loper Bright actually means for agency delegation.
Perhaps this also shows that Loper Bright is not Chevron by any other name. But it's hard to draw that conclusion based on one case, or on one involving a statutory scheme like the one at-issue in Hospital. So to really understand what Loper Bright has done, it would be interesting to find a case with the same procedural posture—initially decided before Loper Bright and then GVR'd in light thereof—but with broader statutory language that expressly delegates to the agency discretion.