A Republican-appointed federal judge says the Supreme Court made a significant error in its landmark ruling that upended four decades of regulatory law.
Senior Circuit Judge A. Raymond Randolph, a George H.W. Bush appointee on the U.S. Court of Appeals for the District of Columbia Circuit, buried the claim in a footnote in a dissenting opinion published Tuesday — first flagged by legal journalist Cristian Farias, who called it an “embarrassing error.”
The ruling Randolph targeted is Loper Bright, the Supreme Court’s 2024 decision that stripped federal agencies of a legal tool — known as Chevron deference — they had relied on for 40 years to interpret ambiguous laws passed by Congress.
Under Chevron, courts gave agencies the benefit of the doubt when laws were unclear. Chevron deference, Justice Elena Kagan wrote in her dissent, had become the “warp and woof of modern government, supporting regulatory efforts of all kinds — to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.”
The 6-3 ruling ended that. Power shifted from expert agency staff to federal judges, giving industries a new avenue to challenge regulations in court.
“There is an error in the Supreme Court’s analysis in Loper Bright,” Randolph wrote in the footnote.
The Supreme Court had criticized the original 1984 Chevron ruling for ignoring Section 706 of the APA — the law governing how courts review federal agency actions.
Randolph says that criticism misses the mark. Section 706 did not apply to the Chevron case because the original dispute involved an Environmental Protection Agency rule governed by the Clean Air Act, which explicitly superseded the Administrative Procedure Act.
“The Court’s critique is unfounded,” Randolph wrote.
The real problem, Randolph argues, was not the original Chevron decision — it was later courts that, in his words, “indiscriminately” applied Chevron’s formula to cases where the APA did apply.
Emily Peterson-Cassin of Demand Progress called the decision “a gift to corporate greed.”
“The Supreme Court is threatening safeguards that protect hundreds of millions of people from unsafe products, bad medicines, dangerous chemicals, illegal scams, and more,” Peterson-Cassin said.
Justice Elena Kagan made the same point in her dissent.
“In one fell swoop, the majority today gives itself exclusive power over every open issue — no matter how expertise-driven or policy-laden — involving the meaning of regulatory law,” Kagan wrote.
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