For the past 40 years, federal administrative agencies have enjoyed broad latitude in interpreting statutes passed by Congress.  Known as “Chevron deference,” courts have routinely deferred to the agencies’ often politically motivated and even self-empowering interpretation of an otherwise ambiguous statute.  This has led to a significant delegation (indeed, some would say surrender) of authority by the legislative and judicial branches to the executive branch, which has resulted in a kudzu-like growth of administrative regulations affecting all aspects of American society.

This phenomenon came to an abrupt end last Friday, when the Supreme Court overruled its own opinion in Chevron and struck a major blow to executive agency power in a 6-3 decision in Loper Bright Enterprises v. Raimondo.  Writing for the majority, Chief Justice John Roberts noted that “…agencies have no special competence in resolving statutory ambiguities. Courts do.” Thus, courts (not administrative agencies) must be the final authority when it comes to statutory construction. 

Although Loper Bright involved a relatively niche dispute regarding regulation of Atlantic herring fishermen, the practical and political implications of the decision are breathtaking.  Wresting power away from the executive branch in favor of the judiciary, Loper Bright exposes many agency regulations to a panoply of potential legal challenges.  Given the extent to which Chevron deference has played a role in constructing the modern administrative state, it is impossible to say exactly how many of the hundreds of thousands of pages of federal regulations may ultimately be impacted by the Loper Bright decision.

From an employment perspective, the federal government has in recent years propounded numerous regulations regarding COVID-19 leaveovertime pay, and non-compete agreements, to name just a few examples.  (For more on Loper Bright’s impact on the National Labor Relations Board and its oversight of union-management relations, see our related blog post here.)  Inasmuch as federal agencies have asserted control over nearly every aspect of American life, other regulations potentially implicated by this case include those governing food and drugs, banking and finance, health care, environmental regulation, taxes—and the list stretches out as far as the imagination can carry it.

Although this new “Loper Bright Doctrine” (remember its name!) may leave existing federal regulations vulnerable, it does not automatically overrule any of them.  Potential attacks on the validity of different regulations will only arise if and when litigants interested in challenging their treatment by federal regulatory agencies take legal action, as did the fishermen in Loper Bright.  

Notably, in a back-to-back decision with Loper Bright, earlier today, the Supreme Court ruled in Corner Post v. Board of Governors of the Federal Reserve System that plaintiffs injured by a federal regulation may bring a lawsuit challenging that regulation’s validity up to six years after the plaintiff experiences the injury.  Previously, the statute of limitations to bring a lawsuit challenging a federal regulation was six years after the rule was issued—regardless of whether the rule actually caused any injury on that date.  

The Corner Post ruling also has huge implications for employers and other businesses seeking to challenge administrative regulations, as it now opens up the window to do so for entities that did not exist at the time that a rule was promulgated but nonetheless have been injured by that rule in the time since.  Given the relative litigiousness of modern American society, it should not take long for challengers to begin the process of seeking to dismantle and potentially rewrite broad swaths of administrative law affecting nearly every aspect of the economy and society.

Summer Associate Cooper Halpern assisted with writing this post.

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.

Photo of Jonathan Slowik Jonathan Slowik

Jonathan Slowik is a special counsel in the Labor Department and a member of the Employment Litigation & Counseling Group.

Photo of Dixie Morrison Dixie Morrison

Dixie Morrison is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group. She is a member of the Discrimination, Harassment, & Title VII and the Labor-Management Relations practice groups.

Dixie assists clients across a…

Dixie Morrison is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group. She is a member of the Discrimination, Harassment, & Title VII and the Labor-Management Relations practice groups.

Dixie assists clients across a variety of industries in litigation and arbitration relating to wrongful termination, discrimination, harassment, retaliation, wage and hour, trade secrets, breach of contract, and whistleblower matters in both the single-plaintiff and class and collective action contexts. She also maintains an active traditional labor and collective bargaining practice and regularly counsels employers on a diverse range of workplace issues.

Dixie earned her J.D. from Harvard Law School, where she was the Executive Editor of Submissions for the Journal of Sports and Entertainment Law. Dixie received her B.A., magna cum laude, from Pomona College. Prior to law school, she served as a labor and economic policy aide in the United States Senate.