Leading tax and administrative law experts unpacked evolving regulatory challenges following the Supreme Court’s landmark decision in Loper Bright, which overruled the long-standing Chevron doctrine.
At the 2026 D.C. Bar Tax Conference January 8, a panel explored the practical impact of the decision on tax litigation, the resurgence of the Skidmore standard of review, and how government agencies and practitioners are adapting.
Chevron Overturned
The discussion, moderated by Baker McKenzie LLP Tax Partner Jud Judkins, centered on how Loper Bright fundamentally alters the framework for challenging agency regulations. The decision overturned the 1984 deference regime underChevron U.S.A., Inc. v. Natural Res. Def. Council, Inc. (467 U.S. 837), where courts would defer to an agency’s reasonable interpretation of an ambiguous statute. This change, Judkins noted, has shifted power from agencies to the judicial branch.
A key takeaway from the decision, as highlighted by Judkins, is that courts now require a clear statutory delegation of discretion for deference to apply. “A general rulemaking grant, in and of itself, is not going to be sufficient to trigger deference, but a rulemaking grant that gives to the agency some degree of discretion … can trigger a situation in which there’s deference,” Judkins observed.
However, panelists concluded that the practical effects are still unfolding. Lindsay Clayton, assistant director at the Department of Justice’s Civil Division, Tax Litigation branch, presented empirical data suggesting that the predicted “anti-regulatory tsunami” has not materialized.
“[T]here hasn’t been some massive unwinding of the regulatory state post-Loper Bright — the percentages of agency win rates are pretty consistent, at least so far,” Clayton stated, noting that agency win rates have held steady at around 60%.
Clayton also emphasized that the ruling did not alter core tenets of administrative law. “Loper Bright did not change the arbitrary, capricious, abuse of discretion, otherwise not in accordance with the law standard that’s in the [Administrative Procedure Act],” she explained.
Skidmore Reliance and Agency Expertise
With Chevron gone, the conversation has turned to an older standard set forth in Skidmore v. Swift & Co. (323 U.S. 134), a pre-Chevron doctrine that gives persuasive weight to an agency’s position based on its thoroughness, reasoning, and consistency. Lisandra Ortiz, a member at Miller & Chevalier Chartered, reported that while Skidmore is gaining attention, its role in recent tax cases has been secondary.
“There’s been a limited application of Skidmore in tax cases, and to the extent it has applied, it doesn’t seem to me like it has … driven the outcome of any of these cases,” she said.
Ortiz also noted the dissent in Loper Bright cautioned that “applying Skidmore would be no walk in the park,” pointing to the inherent variability and challenge courts face in using the multifactor standard.
From the government’s perspective, the fundamentals of rulemaking remain, but the approach to justifying those rules has changed. Shamik Trivedi, an attorney-advisor at Treasury’s Office of Tax Policy, described the practical adjustments. “One thing I’ll point out, in terms of, like, plainly a post-Loper Bright shift, is that we’ve tried to be a lot clearer and up front of where we view our authority … that’s new in the sense that it’s now up front in the preamble,” Trivedi said.
He stressed that the objective has not changed, stating, “The goal has always been to draft rules that adhere to the statute within the bounds of [our] authority.”
Future of Tax Litigation
The panel also examined how these doctrinal shifts are playing out in specific tax and administrative law cases. Gil Rothenberg, adjunct professor at American University Washington College of Law and former chief of the Justice Department’s Appellate Tax Division, analyzed the 8th Circuit’s recent decision in 3M Co. & Subsidiaries v. Comm’r (136 AFTR 2d 2025-6164). In that case, the court invalidated an IRS transfer pricing regulation, signaling a more rigorous judicial review of agency rules.
Rothenberg concluded that the post-Chevron era limits the government’s ability to defend regulations that lack explicit statutory backing. “With the government without Chevron, I think Chevron helped the government in many tax cases … the government is going to be a little bit limited in terms of how it goes forward, because you got to rely on the text now,” he said.
The broader implications extend beyond tax, as discussed by Shay Dvoretzky, head of appellate and Supreme Court practice at Skadden, Arps, Slate, Meagher & Flom LLP. Analyzing the tariff cases pending before the Supreme Court, Dvoretzky highlighted the ongoing tension between presidential authority and legal doctrines like the major questions and non-delegation doctrines.
He noted a key concession from the government at oral argument: “One of the government’s arguments about both major questions and non-delegation is that those doctrines have no applicability whatsoever when it comes to foreign affairs. And [the solicitor general] conceded that actually those doctrines might have some role even in the foreign affairs context.”
This, Dvoretzky reasoned, could mean that even in areas of traditional executive power, courts are increasingly willing to scrutinize the statutory basis for agency actions, a trend that is likely to define regulatory litigation for years to come.
For more on the Loper Bright decision and its implications for agency regulatory interpretation, see Checkpoint’s Federal Tax Coordinator 2d ¶ T-10101.
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