On June 28, 2024, the U.S. Supreme Court overturned the Chevron doctrine of judicial deference to federal agencies’ interpretations of ambiguous statutory language. Since 1984, the U.S. Supreme Court had enforced Chevron, U.S.A., Inc. v. NRDC, Inc., which established a two-step process in which courts first considered if Congress had directly spoken to the interpretive question at issue.1 If Congress had, then it would be the end of the matter. However, if Congress was silent or ambiguous on the interpretive issues, a court would defer to a federal agency’s interpretation if the agency offered a “permissible construction of the statute,” even if the court itself would not have reached the same conclusion.
In Loper Bright Enters. v. Raimondo, the U.S. Supreme Court overruled Chevron and reasoned that it could not be reconciled with the Administrative Procedure Act by presuming that statutory ambiguities must inherently be delegated to agencies.2 The Court further explained that agencies “have no special competence in resolving statutory ambiguities. Courts do.” Therefore, federal courts are now tasked with resolving statutory ambiguities rather than delegating interpretive responsibilities to federal agencies.
Although the Loper Bright decision did not expressly reference the National Labor Relations Board, the Court’s clear assumption of ambiguous interpretive duties implies the Board’s decisions will be subject to increased scrutiny. In recent months, the Board has argued that judicial deference is not needed in construing what amounts to protected concerted activity,3 while employers have relied on Loper Bright to challenge the Board’s conduct in petitioning for injunctive relief4 and issuing complaint after determining an employer violated the Act by refusing to negotiate with a unionized group of college athletes.5
However, the D.C. Circuit Court of Appeals’ recent expression that it will review Board decisions with a “very high degree of deference”— without making any reference to the overturning of Chevron — appears to minimize the effect of Loper Bright moving forward. Conversely, courts in the Fifth Circuit have been more willing to apply Loper Bright in upholding challenges to agency action. For example, in September 2024, a Fifth Circuit district court enjoined an NLRB unfair labor practice trial because plaintiff demonstrated a likelihood to prevail on the merits of its claim that the two-layered for-cause removal protections afforded to Board administrative law judges is unconstitutional.
Member Wilcox appealed her removal, and on March 6, 2025, a D.C. federal judge ordered her reinstatement. However, on March 28, 2025, the D.C. Court of Appeals halted the judge's reinstatement order and deemed her removal lawful, holding the government would likely succeed in showing that the NLRA’s statutory removal protections are unconstitutional. The government then petitioned the Supreme Court to stay the D.C. Circuit's reinstatement order, and on May 22, 2025, the Supreme Court granted the government petition. The Supreme Court did not decide on the merits of Member Wilcox's removal until the parties briefed and argued the issue further, and Member Wilcox's case remains pending before the Supreme Court as of November 2025.
It is unclear if other circuits will follow the Fifth Circuit’s suit, but going forward, especially considering the Supreme Court's granting of the government's petition to stay Member Wilcox's reinstatement we expect the Board’s decisions will continue to face heightened scrutiny under Loper Bright.
1. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)
2. Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024)
3. Miller Plastic Products Inc. v. NLRB, Nos. 23-2689 and 23-2857 (3d Cir. Sep. 3, 2024)
4. Kerwin v. Trinity Health Grand Haven Hospital, 1:24-cv-00445 (W.D. Mich., Aug. 19, 2024)
5. Trustees of Dartmouth College, 01-CA-348789 (Aug. 20, 2024)