Loper Bright Restores the Balance Between Congress and the Executive Branch

The Loper Bright decision has received much attention, as it should. It was a momentous decision. Some writers have said it gives judges the power to decide what science regulators should use – it does not. Neither the majority opinion, written by Chief Justice John Roberts, the two concurring opinions by Associate Justice Clarence Thomas and Associate Justice Neil Gorsuch, nor the dissenting opinion, written by Associate Justice Elena Kagan, mentions the word science.

The crux of the case was not regulatory science, but how far regulators can go in interpreting the Congressional act they are tasked with implementing. Do appointed judges or unelected bureaucrats have the final say in interpreting the law? Of course, judges are appointed to do just that.

Chief Justice Roberts writes: 

“The Administrative Procedure Act [1] require courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may defer to an agency's interpretation of the law simply because a statute is ambiguous.”

Article III of the Constitution assigns the Federal Judiciary the responsibility and power to adjudicate “Cases and Controversies” – concrete disputes with consequences for the parties involved. The Framers appreciated that the laws judges would necessarily apply in resolving those disputes would not always be clear, but envisioned the final "interpretations of the laws" would be "the proper and peculiar province of the courts.

"It is emphatically the province and duty of the judicial department to say what the law is." 

- Chief Justice Marshall in Marbury vs. Madison

In other words, the decision in Loper Bright is not one of scientific interpretation but legal interpretation. And scientists and regulators are not judicial scholars. The decision does not say the courts will override the FDA and approve a drug nor discard a scientific fact to overturn a regulation. It is clearly about the agencies going beyond the intent of Congress. Without the judiciary's power to do this, there is no longer a check on unelected members of the executive branch.

Let me give you some examples of administrative agencies, focusing on the EPA, because I have worked with them the most. Much of the research the EPA uses in drafting regulations is not available to the public. While the stated results are public, the methodologies and data are not. Of course, that violates the Founders' view that the government must be transparent to keep it in check. Transparency in Congress comes through the publicly available Congressional Record and in the Executive Branch through the National Archives.

In the early 1970s, the EPA was tasked with enforcing the Clean Air Act. By that time, much of the industrial air pollution had been curtailed, thanks to Westinghouse’s introduction of scrubbers, so the soot that covered buildings and sidewalks in Pittsburgh was no longer prevalent. So, the EPA set out to clean other pollution out of the air. And they did an outstanding job. Many toxins from burning gasoline were removed from the exhaust, lead additives removed, and catalytic converters installed. More than 20 years ago, the EPA targeted PM_2.5 because its research said that PM2.5 causes asthma in children. PM_2.5 levels are now well below the levels set by the EPA. Satellite images from NASA and others show the US’s air to be some of the cleanest in the world. But, the EPA wants new regulations requiring even further reductions on PM_2.5 because asthma rates are still climbing. But the mere fact that our PM_2.5 levels have dropped dramatically while asthma rates have increased should be a sign that PM_2.5 isn’t the only cause of asthma. 

In a related matter, in 2018 a study was released studying the effects of removing aerosols on our climate. PM_2.5is one of those aerosols. The gist of the findings was that removing all atmospheric aerosols, which helped reflect some of the sun’s heat, caused global temperatures to rise faster than they had been. That could be why they are now considering floating balloons in the air to reflect some of the sun’s heat.

The Loper Bright decision is a pivotal reminder of why the judiciary exists: to interpret the law and ensure the bureaucracy remains tethered to the will of Congress. It doesn’t undermine science or regulatory expertise—it restores a constitutional check on unelected officials who might stray beyond their mandates. By insisting on transparency, accountability, and fidelity to statutory authority, the decision reinforces the principles that safeguard democracy. Without these checks, regulators could run unchecked, leaving the governed at the mercy of the governed. In Loper Bright, the Supreme Court didn’t just make a ruling—it reasserted the very essence of the rule of law.

[1] The Administrative Procedure Act (APA), enacted in 1946, is a foundational US federal statute that regulates how federal agencies propose and implement regulations. It also provides federal courts with the authority to review agency actions. Described as a "constitution" for US administrative law, the APA is a cornerstone of the nation's administrative legal framework.