Colorado attorneys heard on Tuesday that federal courts are in a “free-for-all” as they interpret recent U.S. Supreme Court precedent shifting power from executive agencies to judges to determine whether regulations are appropriate or not.

“One of the dominant theories is that Congress delegates because it simply doesn’t have the time or the expertise to address in advance all possible scenarios that could come up under a statute,” said Sharon Jacobs, a professor at Berkeley Law. “So, it gives agencies — which are more nimble, are on the ground, more expert — the ability to fill in the gaps.”

Jacobs spoke during an online event sponsored by the Colorado Bar Association and moderated by Justice William W. Hood III of the state Supreme Court. The discussion centered on a June 2024 U.S. Supreme Court decision, Loper Bright Enterprises v. Raimondo, in which the six conservative members abolished a 40-year-old legal principle known as “Chevron deference.”

Named after a 1984 case, Chevron deference required courts to defer to executive agencies’ reasonable interpretations of ambiguous laws when they craft regulations. The effect of eliminating Chevron deference is to give judges more authority, at the expense of regulatory experts, to weigh technical policy changes.

In addition to Loper Bright, the court issued two more decisions along ideological lines extending the window to challenge agencies’ actions and limiting agencies’ ability to impose civil penalties without a jury trial.

“I thought it would be appropriate to talk about what a watershed year this has been in administrative law,” said Hood. “Tell us how it is that you think Loper Bright will affect things going forward. How much will things actually change?”

Jacobs responded the Supreme Court will eventually clarify how judges should evaluate the propriety of executive branch regulations in the absence of a new standard to replace Chevron deference.

“Right now, it’s a little bit of a free-for-all,” she said.

The incoming Trump administration has already suggested Loper Bright will help it advance its goals. Vivek Ramaswamy, a biotech entrepreneur who will co-lead an advisory “Department of Government Efficiency,” wrote on Sunday that the Supreme Court’s decision “paves the way for not a slight but a *drastic* reduction in the scope of the federal regulatory state. It’s coming.”

Ramaswamy’s comments came weeks after two sitting judges, appointed by former President Donald Trump in his first term, raised glasses of champagne in celebration of the new limits on regulatory agencies at the annual convention of the Federalist Society, a group at the core of the conservative legal movement.

Jacobs said the Supreme Court justices who originally created Chevron deference in 1984 did not believe they were doing “anything significant.” However, litigants began to see Chevron deference as a tool favoring regulators, and it became a target for elimination in the conservative-majority court.

“These are not only big administrative law cases, they’re also cases where we see pretty clear partisan splits in decision-making,” she said. “They all serve to cabin the authority of administrative agencies, vis-à-vis the court. So, they’re also expansions of judicial authority.”

“Justice Kagan’s dissent is a pretty forceful defense of agency expertise,” said Hood, noting Justice Elena Kagan had referred to the Loper Bright decision as “Hubris Squared” for shifting regulatory interpretation from agency experts to judges.

Kagan “made a positive case for administration as a force for good in society,” agreed Jacobs.

Jacobs predicted the Supreme Court may choose to further reduce the power of regulatory agencies to apply broadly written laws to address specific problems. She invoked the “nondelegation doctrine” — the idea that Congress must delegate authority to the executive branch with some guardrails restricting the exercise of power — as a potential vehicle.

Although the Supreme Court has only struck down two laws under the doctrine, both in 1935, a petition on the subject is currently pending before the nation’s highest court in a case out of Colorado.

In April, the U.S. Court of Appeals for the 10th Circuit upheld a Biden administration rule raising the minimum wage for certain seasonal outdoor guides. The dissenting judge, Trump appointee Allison H. Eid of Colorado, believed the decades-old law empowering presidents to issue contracting directives was unconstitutional — thanks to the nondelegation doctrine. The challengers have appealed to the Supreme Court, where they referenced Eid 24 times.

Jacobs believed executive agencies will need to perform more work to document their decision-making so as to survive legal challenges — with more work, also, for the judges reviewing whether regulations comply with an ambiguous law. As for the Trump administration’s anticipated moves to force out civil servants and “delete outright” certain agencies, Jacobs said Loper Bright is not a “silver bullet.”

“You need a vibrant administration to do deregulation correctly. You need good civil servants to accomplish deregulation,” she said. “So, if your first goal is to purge the administration of key actors, you may find that your job becomes more difficult later down the road.”