By: Harry A. Allegra
For almost forty years, “Chevron deference” structured how boards, in‑house counsel, and litigators thought about federal regulation.[1] When a statute was ambiguous and an agency’s interpretation was reasonable, courts were supposed to defer—even if judges might have read the statute differently on their own. That framework operated as a default rule: if you could win the battle inside the agency, you would probably win in court.
In June 2024, Loper Bright Enterprises v. Raimondo declared that era to be over. The Court held that § 706 of the Administrative Procedure Act requires courts to exercise independent judgment on “all relevant questions of law,” and may not defer to an agency merely because a statute is ambiguous.[2] Chevron’s two-‑step inquiry was replaced with a single inquiry: what is the statute’s “best” meaning?
I. From Chevron to Raimondo: The New Baseline
Chevron deference gave agencies the benefit of statutory ambiguity: once a court found that Congress had not clearly spoken to the precise question at issue, the court was required to uphold any reasonable agency construction, even if it would have adopted a different reading de novo.[3] That framework structured judicial review across thousands of cases and allowed corporate actors to treat authoritative agency interpretations as the operative law so long as they survived Chevron’s reasonableness screen.
In Raimondo, the Court held that § 706 of the Administrative Procedure Act requires courts to “decide all relevant questions of law” by exercising their own independent judgment, and that courts “may not defer to an agency’s interpretation of the law simply because a statute is ambiguous,” expressly overruling Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.[4] Going forward, statutory questions that arise in agency cases are to be resolved under a de novo “best reading” standard, rather than through Chevron’s two‑step deference framework.[5]
At the same time, Raimondo left important pieces of the pre‑existing architecture in place. The Court emphasized that Congress can still make express delegations that authorize agencies to define particular statutory terms or to exercise policy “flexibility” under open‑textured standards such as “reasonable” or “appropriate,” with courts then policing only the boundaries of that delegation and reviewing the agency’s choices for arbitrariness.[6] It also invoked Skidmore v. Swift & Co. as the template for treating agency views as persuasive authority that may be given “weight” based on factors like thoroughness, consistency, and timing, rather than as binding constructions that control by virtue of ambiguity alone.[7] In short, Raimondo removes Chevron’s automatic thumb on the scale but preserves both explicit statutory delegations and a Skidmore‑style space for agency expertise within a formally de novo review regime.
That formal reset, by itself, does not tell corporate lawyers how federal courts will actually behave when high‑stakes regulatory disputes reach the merits. The first post‑Raimondo term has begun to answer that question, with decisions such as FCC v. Consumers’ Research—upholding the universal service contribution mechanism against a nondelegation challenge—as early indicators of how a more textualist Court, operating without Chevron, will evaluate large‑scale funding and compliance regimes that shape corporate planning and disclosure.
II. FCC v. Consumers’ Research: Universal Service, Nondelegation, and Corporate Exposure
The Court’s first major post‑Raimondo encounter with a large, revenue‑raising regulatory program came in FCC v. Consumers’ Research.[8] The case concerned the universal service contribution mechanism under 47 U.S.C. § 254, which requires every carrier providing interstate telecommunications services to contribute, pursuant to FCC rules, to a fund that finances subsidy programs for designated low‑income, rural, educational, and health‑care beneficiaries.[9] For carriers, and the many corporations that pass these “universal service” line items through to customers, the scheme functions as an ongoing, quasi‑tax obligation embedded in pricing, compliance planning, and public disclosure.
The Fifth Circuit had held that the universal service scheme violated both the traditional nondelegation doctrine and a “private nondelegation” theory, reasoning that Congress had given away legislative power to the FCC and that the FCC had in turn ceded effective control to the Universal Service Administrative Company (USAC).[10] The Supreme Court reversed, holding that no impermissible transfer of authority had occurred.[11] Justice Kagan’s opinion for the Court concluded that Congress “sufficiently guided and constrained” the discretion it lodged with the FCC and that the Commission retained all decision‑making authority while relying on USAC only for nonbinding advice and implementation assistance.[12]
On the statutory side, the Court emphasized that § 254 “provides detailed guidance” as to both beneficiaries and the content of “universal service.”[13] “The statute directs the FCC to support specified categories of beneficiaries and defines ‘universal service’ as an ‘evolving’ set of telecommunications services that are essential, widely used, and reasonably affordable.”[14] Congress also lists six governing principles—affordability, nationwide access, rural‑urban comparability, equitable carrier contributions, specific and sufficient subsidies, and support for schools, libraries, and health care—while permitting the FCC to adopt additional principles only if consistent with the Act and necessary and appropriate to protect the public interest.[15] The majority described these criteria as creating a “bounded program” with “determinate standards” for the FCC’s exercise of discretion.[16]
On the private‑delegation side, the Court relied on Sunshine Anthracite to uphold the FCC’s use of USAC. It stressed that the FCC appoints USAC’s board, approves its budget, constrains its activities through rules, orders, and written directives, and retains de novo review over any action USAC takes, including contribution‑factor proposals.[17] Under that structure, USAC “functions subordinately to” the Commission and offers recommendations that the FCC is free to accept, modify, or reject; the Court held that such an arrangement does not offend either traditional or private nondelegation principles.[18]
Justice Kavanaugh’s concurrence used Consumers’ Research to restate what he sees as the historical and functional rationale for the intelligible‑principle test. He emphasized that, since the Founding, Congress has routinely delegated some policymaking discretion to the President and executive agencies so long as it supplies a policy and standards that cabin that discretion.[19] He also stressed two points: that delegations to independent agencies (rather than presidentially controlled executive agencies) raise serious Article II concerns, and that the major questions doctrine has not been applied in national‑security or foreign‑affairs contexts, where Congress instead expects broad presidential discretion and indicates any limits expressly.
Justice Gorsuch, joined by Justices Thomas and Alito, dissented, treating the universal service exaction as a tax that violates core nondelegation limits when Congress allows the FCC effectively to set the rate. He emphasized that the contribution factor—now approaching 37% of assessable revenues—functions as a tax rate set by an agency without a legislatively prescribed rate or meaningful numerical cap, argued that Congress has “almost invariably” retained for itself the power to fix tax rates or impose real caps, and concluded that delegating that power to an agency is inconsistent with Article I’s assignment of taxing authority to the people’s elected representatives.[20] While the majority upheld the core contribution scheme, the dissent read parts of § 254—particularly provisions authorizing additional, more open‑ended programs—as going beyond any previously approved delegation and suggested that challenges to those components remain available on remand or in future litigation.[21]
III. Skidmore, “Shadow Skidmore,” and the Quiet Survival of Agency Expertise
Even as Raimondo overruled Chevron, it preserved a role for agency views through Skidmore v. Swift & Co.. Under Skidmore, interpretations that do not carry the force of law are not binding but may be given “weight” based on their power to persuade, considering factors such as the thoroughness of the agency’s reasoning, the validity of its analysis, and the consistency of its position over time.[22] The Raimondo majority stressed that although courts must exercise independent judgment under 5 U.S.C. § 706 and may not defer merely because a statute is ambiguous, agency interpretations can still inform judicial analysis and may warrant respect in light of their expertise and experience.[23]
In Chevron’s absence, courts might either lean more heavily on Skidmore’s persuasive‑weight framework or more readily characterize statutes as delegating discretionary authority to agencies, thereby softening the blow to the administrative state while still nominally applying de novo review. That backdrop suggests that the precise way courts operationalize Skidmore in a post‑Raimondo world will matter significantly for agency win rates and, by extension, for corporate litigation strategy.
FCC v. Consumers’ Research itself illustrates how Skidmore‑like considerations can operate under the new regime. The Court did not cite Skidmore, but it repeatedly anchored its statutory analysis in the Communications Act’s universal‑service history and in the FCC’s decades‑long implementation of that mandate.[24] The majority traced “universal service” back to the 1934 Act’s instruction that the FCC make communications services available “to all the people of the United States” at reasonable charges, and explained how the program has responded to carriers’ incentives to underserve rural, low‑income, and non‑profit users.[25] The Court tied each of the FCC’s four universal‑service programs to specific statutory purposes and to Congress’s long‑standing concern about underserved rural, low‑income, and non‑profit users.[26]
On nondelegation, it emphasized that § 254 supplies “detailed guidance” and “determinate standards” for the FCC’s work, highlighting the statutory definition of “universal service” as an “evolving level” of services that are essential to education, health, or safety, subscribed to by a substantial majority of residential customers, and capable of being offered at reasonable and affordable rates, alongside six codified principles and a limited authorization to adopt additional, consistent principles.[27] Those statutory criteria do much of the work, but the majority’s comfort with the scheme is also reinforced by FCC’s actual administration of it—maintaining a bounded set of programs focused on the very populations and services Congress identified.[28] That pattern—text‑first analysis followed by reliance on long, consistent administrative practice as evidence that the reading is sound and the delegation is cabined—tracks Skidmore’s emphasis on contemporaneity, consistency, and expertise.
Justice Kavanaugh’s concurrence in Consumers’ Research similarly blends textual and historical analysis with attention to institutional practice. He situates the universal‑service delegation within a long line of intelligible‑principle cases involving presidential and executive‑agency discretion, and he treats delegations to independent agencies as raising distinct Article II concerns about democratic accountability.[29] In doing so, he relies on Kennedy v. Braidwood Management, Inc., 606 U.S. 748 (2025), for the proposition that courts do not infer for‑cause removal protections from statutory silence—an example of the Court using accumulated structural practice, rather than Chevron, as a background constraint on how far statutory text can be read to empower “independent” actors.[30]
IV. What This Early Post-Raimondo Practice Means for Corporate and Delaware Counsel
For litigators, the combination of Raimondo’s de novo “best reading” standard and the Court’s reaffirmation of Skidmore‑style persuasive weight reshapes the expected value of statutory challenges to agency action.[31] Empirical work indicates that agencies prevail substantially more often when courts apply Chevron than when they apply Skidmore or de novo review.[32] The Supreme Court’s decision in Corner Post, Inc. v. Board of Governors of the Federal Reserve System further extends the window for bringing APA challenges by holding that the six‑year limitations period runs from when a regulation is first applied to a particular plaintiff, not from promulgation.[33] Together, these shifts create significantly more space for regulated firms to contest statutory authority and to select favorable forums, especially in circuits that have not yet decided on key delegations.
From a planning perspective, FCC v. Consumers’ Research offers an important stabilizing signal for mature, revenue‑raising schemes. The Court held that the universal service contribution mechanism under 47 U.S.C. § 254 satisfies the nondelegation doctrine because Congress “sufficiently guided and constrained” the FCC’s discretion with detailed standards and the agency retained final decision‑making authority while relying on USAC only for nonbinding recommendations.[34] At the same time, the dissent treated the contribution factor—now approaching 37% of assessable carrier revenues—as a tax effectively set by an agency rather than by Congress, and warned that delegations of such open‑ended revenue authority press against Article I’s allocation of the taxing power.[35] Corporate counsel therefore cannot assume that other, less‑cabined funding mechanisms or aggressive new programs will enjoy the same security.
For Delaware‑incorporated companies, these developments have governance as well as litigation implications. Removing Chevron’s deference will both reduce agency flexibility to shift policy through reinterpretation and increase the volume of statutory challenges, producing more fragmented, circuit‑specific interpretations in the short term. That combination heightens the importance of board‑level oversight of regulatory risk—especially where key revenue streams or compliance costs rest on contested delegations or newly minted interpretations—and of disclosure that candidly addresses the vulnerability of material federal programs to post‑Raimondo challenges in particular circuits.
V. Returning to Chevron’s Demise and the Road Ahead
My Comment predicted three main effects of Chevron’s demise: lower agency win rates in statutory cases, entrenchment of the regulatory status quo absent clear congressional change, and a surge of litigation and forum shopping—amplified by Corner Post—as regulated entities challenge statutes long insulated by Chevron. The Court’s early ‑post Raimondo practice in FCC v. Consumers’ Research partially confirms and partially complicates that picture. On one hand, the decision shows that large, longstanding funding regimes with detailed statutory standards and decades of consistent implementation can survive aggressive nondelegation attacks even without Chevron, especially when the agency has kept control rather than subdelegating power to private actors.[36] On the other hand, Justice Gorsuch’s dissent, joined by Justices Thomas and Alito, treats § 254 as an unprecedented delegation of taxing authority to an agency and flags additional components of the universal service statute as constitutionally suspect, signaling that revenue raising schemes and broad delegations remain‑ exposed in future cases.[37]
For corporate and Delaware practitioners, the emerging lesson is that Raimondo has not produced a simple antiregulatory revolution so much as a resorting risk. Mature statutory programs with clear textual anchors and long administrative histories—like the universal service fund’s core—may remain relatively stable through a combination of rigorous textualism and “shadow Skidmore,” while newer, more expansive interpretations lacking that track record invite serious judicial scrutiny and present real opportunities for business side challengers. Over the next several Terms, the key questions will be how lower courts operationalize Skidmore, how willing they are to find implicit delegations in the absence of Chevron’s presumption, and whether the Court extends its emerging limits on delegations—especially in cases involving independent agencies, taxation-like exactions, or domestic major questions—to the regulatory regimes that most directly shape corporate capital allocation, risk management, and disclosure.
About the Author
Harry A. Allegra is a third-year law student at Widener University Delaware Law School and a staff editor for the Delaware Journal of Corporate Law. His academic and professional interests focus on corporate law litigation, Delaware corporate governance, and administrative law. He has served as a law clerk to a municipal judge and as an intern with the Mercer County Prosecutor’s Office, where he gained supervised courtroom experience on behalf of the State of New Jersey.
[1] See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), overruled by, Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).
[2] Raimondo, 603 U.S. at 384–85 (interpreting 5 U.S.C. § 706).
[3] Chevron, 467 U.S. at 842–45.
[4] Raimondo, 603 U.S. at 384–85, 406–07.
[5] Id.
[6] Id. at 369.
[7] Id.; Skidmore v. Swift & Co., 323 U.S. 134 (1944).
[8] Fed. Commc’ns Comm’n v. Consumers’ Research, 606 U.S. 656 (2025).
[9] 47 U.S.C. § 254(d); Consumers’ Research, 606 U.S. 656.
[10] Consumers’ Research, 606 U.S. 656.
[11] Id.
[12] Id.
[13] Id. at 658–59.
[14] Consumers’ Research, 606 U.S. at 665–66, 684–85.
[15] 47 U.S.C. § 254(b)(1)–(7); Consumers’ Research, 606 U.S. at 665–68.
[16] Consumers’ Research, 606 U.S. at 684–85.
[17] Id. at 692–94.
[18] Id. at 692–95; Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 399 (1940).
[19] Consumers’ Research, 606 U.S. at 699–702 (Kavanaugh, J., concurring).
[20] Id. at 719–21 (Gorsuch, J., dissenting).
[21] Id. at 731–33 (Gorsuch, J., dissenting).
[22] Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
[23] Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 384–85 (2024).
[24] Consumers’ Research, 606 U.S. at 665–68, 683–88.
[25] Id. at 665–66.
[26] Id. at 666–68, 686–87.
[27] Id. at 684–85.
[28] Consumers’ Research, 606 U.S.at 666–68, 686–87.
[29] Id. at 656, 698–702 (Kavanaugh, J., concurring).
[30] Id. at 702–04 (Kavanaugh, J., concurring) (relying on Kennedy v. Braidwood Mgmt., Inc., 606 U.S. 748 (2025), to conclude that courts do not infer for‑cause removal protection from statutory silence).
[31] Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024); Skidmore v. Swift & Co., 323 U.S. 134 (1944).
[32] See Benjamin M. Barczewski, Cong. Rsch. Serv., R44954, Chevron Deference: A Primer (May 18, 2023) (summarizing empirical studies reporting agency win rates of approximately 77.4% under Chevron, 56.0% under Skidmore, and 38.5% under de novo review); see also Paul R. Barsness, What Does the End of Chevron Deference Really Mean for Employers?, bradley (July 30, 2024), https://www.bradley.com/insights/publications/2024/07/what-does-the-end-of-chevron-deference-really-mean-for-employers.
[33] Corner Post, Inc. v. Bd. of Governors of the Fed. Reserve Sys., 603 U.S. 799, 807–09 (2024).
[34] Consumers’ Research, 606 U.S. at 684–85, 692–95.
[35] Id. at 712–13, 719–21 (Gorsuch, J., dissenting).
[36] Id. at 665–68, 684–85, 692–95.
[37] Id. at 712–13, 719–21, 731–33 (Gorsuch, J., dissenting).
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