Relentless/Loper Bright in the Lower Courts: Flare-Ups After Chevron’s Fall

The battle to determine the import of the Supreme Court’s landmark 2024 ruling in Relentless v. Department of Commerce and its companion case Loper Bright Enterprises v. Raimondo in the lower courts has featured a few notable flare-ups recently. Such flare-ups could be expected. The ultimate import of a Supreme Court opinion over the activities of lower courts might not be known immediately. Indeed, as Professor Thomas Merrill noted in his magisterial book, The Chevron Doctrine, and I have written elsewhere, the import of Loper Bright/Relentless’s precedential precursor only became apparent when lower federal courts applied its dictates. “Chevron invited ‘busy lower-court judges’ to ‘simply ratify whatever the agency proposes to do’….[C]ompared ‘to the complex matrix of factors that prevailed in the pre-Chevron era,’ lower courts embraced the relative simplicity of the formulaic two-step Chevron analysis.” Good riddance, after the Court’s decision in Loper Bright/Relentless, to that two-step analysis which had courts acting as rubber stamps for however agencies resolved statutory ambiguity.   

At present, lower courts are in their second year of grappling with the requirement of Loper-Bright/Relentless to fulfill their judicial duty by offering independent readings of ambiguous statutory provisions relevant to the work of administrative agencies. The work of lower courts distilling Supreme Court opinions necessarily involves disagreements among the various courts. This is normal, and it underscores why NCLA’s Relentless Working Group is needed even after its major victory in Loper Bright/Relentless. But as mentioned, noteworthy flare-ups are occurring that deserve attention to understand how Loper Bright/Relentless is being distilled by the lower courts. A prominent recent denial of rehearing en banc from the Ninth Circuit in Lopez v. Bondi triggered a scathing dissent from Judge Patrick Bumatay, which accused the majority of flatly ignoring the Court’s decision in Loper Bright/Relentless. Another less well-known flare-up appeared when a district court judge in the Northern District of Texas accused not his fellow judicial brethren of ignoring Loper Bright/Relentless but rather the lawyers for the government arguing before him of ignoring it.

Lopez was a case that considered what legal deference to give the Bord of Immigration Appeals’s interpretation of the term “crime involving moral turpitude.” In his dissent from denial of en banc rehearing of the Ninth Circuit’s decision this August in Lopez, Judge Bumatay could barely contain his incredulity that the majority would decline to hear a case “of rare importance. As the first to interpret Loper Bright in the immigration context, Lopez will govern hundreds of cases on the Ninth Circuit’s docket.” He found primary fault with the majority for “resurrecting Chevron” in preserving an agency’s interpretation of the term “crime involving moral turpitude” under the guise of what’s known as Skidmore deference. Judge Bumatay charged the panel with asking the wrong question of whether the agency interpretation was entitled to respect under Skidmore. “Rather,” as Judge Bumatay rightly reasons post-Loper Bright/Relentless, “the right question is, and always is, ‘what’s the best reading of the statute?’ Even if an interpretation is thorough, well-reasoned, and consistent with some authorities, that doesn’t mean it’s the best one.” He would go on to inveigh perceptively against the majority, “We don’t then check whether the Executive branch agrees with the plain meaning. We don’t check because we don’t care. The law governs—not agency interpretation. So deference and respect have nothing to do with this question. And it contradicts Loper Bright to say otherwise.”

Another judge’s incredulity over a failure to consider the importance of Loper Bright/Relentless caused a separate recent flare-up. While  pre-trial motions can often be mundane affairs, a September 12, 2025 order from Judge Brantley Starr of the U.S. District Court for the Northern District of Texas was anything but in the ongoing litigation between the Commodity Futures Trading Commission and TMTE, Inc. The ongoing case concerns an enforcement action brought by CFTC against an alleged fraudster of investors in gold and silver bullion. Gold and silver bullion has traditionally been considered part of CFTC’s purview of “all other goods,” a catchall provision contained in the Commodity Exchange Act. But those traditional considerations were all before Loper Bright/Relentless. In the order, Judge Starr criticized the CFTC for failing in its briefing before the court to offer “meaningful textualist or originalist explanation of its authority” and relatedly sought an answer to the question from CFTC of “What weight should be given to the CFTC’s interpretation of ‘all other goods’ in light of Loper Bright Enterprises v. Raimondo?” The tone of Judge Starr’s order is best captured in the judge’s admonishment to the federal regulator: “While the CFTC may be comfortable operating off assumptions, Courts aren’t.” CFTC has until October 24, 2025 to provide answers to Judge Starr.

Both these flare-ups demonstrate that some members of the federal judiciary will not tolerate any diminishment in the import of Loper-Bright/Relentless. Time will tell if they, hopefully, will constitute a majority of federal judges.

October 10, 2025