Chevron deference may be gone—but is the Supreme Court quietly laying the groundwork for something even worse?

In this episode of Unwritten Law, Mark Chenoweth and John Vecchione examine a recent Supreme Court decision that could dramatically reshape administrative law. Drawing on analysis by Will Yeatman, they discuss how the Court’s handling of VanDerStok risks giving agencies a powerful new shield by treating challenges to regulations as “facial” attacks—making them nearly impossible to win.

The conversation dives into why this approach departs from traditional administrative-law principles, how lower courts may use it to avoid meaningful judicial review, and why this decision could become a dangerous tool for future administrations—regardless of political party.

If you care about limits on bureaucratic power, the future of post-Chevron litigation, or the proper role of courts in reviewing agency action, this episode explains why VanDerStok is an issue worth watching closely.

Automated Voice: If you think that unwritten law doesn’t affect you, think again. Whether you’re a business owner, a professional, just an average citizen, you are unknowingly going to fall under vague and unofficial rules. And when bureaucrats act like lawmakers, they’re really restricting your liberty without the consent of the governed.

Mark Chenowith: Welcome to Unwritten Law. This is Mark Chenowith here with John Vecchione. And we’re starting the new year with a problem, John. And this is something I’m gonna just start by tipping a hat to Will Yeatman over at Pacific Legal Foundation, who brought this issue to our attention. But it’s a case that was decided, as he says, intentionally or not, the court’s decision in Bondi v. VanDerStok last term has the potential to dent the arc of administrative law. And he cites Justice Alito's dissent, which Alito says that the case could end up being a “huge boon for the administrative state.”

And, John, if I’m following the argument correctly – so, thanks to you and the efforts of others, we’ve gotten rid of Chevron deference now. But now this is an even, in some ways more, deferential take toward the administrative state, ‘cause they’re treating these administrative law cases as facial attacks on the rule and saying, “Well, as long as the rule is okay in any application, then you lose that attack.” Well, that can’t be right. That’s never been how administrative law has been handled.

Maybe we can get to the specifics of VanDerStok in a second, and there’s a reason why maybe the decision in that particular case wouldn’t translate to others, but we’re already seeing lower courts sort of pick up on this.

John Vecchione: It’s very difficult to hold precedent to one area. So, here’s the thing. It has happened that a facial attack on a statute, you have to show that in no circumstances is it legal, right? That at least we’ve had for a while.

Mark Chenowith: That’s right. No set of circumstances under which the government’s action would be valid.

John Vecchione: Right. And so, I don’t really like it, but I can’t say it’s something new and different. And here, for administrative law purposes, you sue under the APA, and in this case, let’s talk a little about the facts. Here, the ATF was back again, just like in bump stocks. And there were these homemade firearm kits. And they said that the firearm kits were illegal because you could, with very little modification, make a gun out of ‘em. So, it was almost like having a gun. It was like add water, and you have a gun. That kind of thing, you know? Three minutes in the microwave. So, in any event, there was a big dispute about whether that was true or not. And what I remember very vividly was Solicitor General Prelogar having bought one of these, and put together a gun, and described how she did it. I thought that was brilliant. I think it moved some votes here. But it shouldn’t have moved this, right? The question of whether or not it was a gun or not a gun, okay, they can do that. But to say that –

Mark Chenowith: But not the standard of review or the –

John Vecchione: – but not the standard of review. And that is what is really hurting here because if an administrative agency’s regulation is entitled to the same hands-off view as a statute, what you’re doing is you’re imbuing the entire respect that you have for Congress to an administrative agency that’s a creature of Congress and doesn’t have the broad power Congress has.

Mark Chenowith: Right. And people have heard me on that high-horse before, that I don’t think that statutes and regulations arrive at court cloaked with the same level of presumption of constitutionality. Specifically, what the court said here was that the VanDerStok plaintiffs had asked for facial review. And I think they would dispute that. I think that there was a little bit of – I don’t know, what’s the right word? Archeology or sort of digging around for truffles or something like that, trying to find a way of saying that that’s what had happened here. ‘Cause I’m not really sure that that’s what happened, and who would ever do that?

There’s no reason why any plaintiff would deliberately try to cabin their review in this kind of a case.

John Vecchione: Particularly, as they all had these kits. So, really, they had actual circumstances, right? “I bought this kit. I’m about to put it together. I don’t wanna go to jail, right?”

Mark Chenowith: Right. Just like our bump stock plaintiffs. Yeah.

John Vecchione: Right. And so, I say, “Here’s my kit. Here’s what I have. This is not a speculative thing. They’re coming after me. They’re saying that this kit is illegal and they will take it from me or put me in jail, right?”

Mark Chenowith: That does not sound facial.

John Vecchione: That does not sound facial.

Mark Chenowith: Doesn’t sound facial. And I don’t think it was. So, I think there was a little bit of – what did Scalia call it? Hocus pocus or piggily-wiggly or something. Something like that, going on here with what the majority did. And if it’s confined to that one case, then maybe not a lot of damage will be done. But to your point, John, these things don’t usually get limited that way. You’ve handed a tool to lower courts who want to empower the administrative state and want to avoid doing their job, which we saw all the time under Chevron deference.

You’ve handed them another tool by which they can avoid doing the hard work of statutory interpretation and just say, “Oh, well, you know you haven’t shown that every single application of this new rule from the agency is unlawful. Therefore, you lose.”

John Vecchione: Well, the one I always remember is in Bush v. Gore, they put in the Bush v. Gore decision that this is not precedential for anything. This is unique circumstances. So, pay no attention to this Bush v. Gore after this election is over. Well, of course, it’s cited hundreds if not thousands of times because it’s useful to litigants in that area. So, what are they supposed to do? Are the lawyers supposed to say, “Oh, look. Here’s the line which says it’s non-precedential.” That’s not how it’s gonna happen. So, I do think that this could be trouble, and I think that Bill –

Mark Chenowith: Yeatman. Will Yeatman.

John Vecchione: Yeah. I think that he has – yeah, Will. I think he has identified a – maybe it’s a cloud no bigger than a man’s hand now, but the storm might come out of it, and they might have with this, and I think it was the same term as Loper Bright or just after.

Mark Chenowith: Or at least consecutive. Within a calendar year.

John Vecchione: It was just after, yeah, yeah. Within the calendar year. So, this could be a problem because the APA has to be used, and you have to have standing. But your standing kind of makes the factual situation like it did in this case. You attack it, you say that it’s an illegal regulation, but you’re standing, you have the kit, and the kit makes you a criminal, makes it non-facial attack, it seems to me.

Mark Chenowith: Well, the other thing that it seems like it’s trying to do is, we view these attacks on the APA as a way of setting aside the rule, right? And it’s almost like they’re trying to say, “Oh, well, no, no, no. You can’t set aside the whole rule because if it’s not a facial attack or if it’s only as applied challenge, then the remedy can only be for you. It can’t be to set aside the rule for everyone.” And so, I wonder if there’s sort of a remedy problem or there may be some sort of Trump v. CASA kind of background effort going on here, too. I mean, as you say, this was right after Loper Bright and Relentless.

The court that issued that decision overturning a 40-year-old precedent in order to get rid of judicial deference to administrative agencies doesn’t seem like they would be deliberately backdooring in something like this in order to reinstitute some sort of deference to administrative agencies. That just doesn’t compute.

John Vecchione: And I think before this, you know, some of the lower courts have done a lot of this facial is different from as applied in the administrative law context. But I don’t think the Supreme Court ever did before this. I don’t think so. I could be wrong, but I think Will says that it hadn’t happened before, and I think that’s right. But the fact is, you don’t want this, as Barney Fife used to say, “Nip it in the bud. This could be trouble.” And we really have to watch it.

Mark Chenowith: I agree with that. The other thing that’s bothering me about this case, and Trump v. CASA was the same way. If the court is going to consider massive changes to administrative law and the way it’s – it needs to signal that in the QP. There was nothing about this case to suggest that this was gonna be some –

John Vecchione: The question presented everybody.

Mark Chenowith: Oh, yeah. And so, I mean, we’re actively watching the docket and trying to make sure that we’re jumping in on the merits at least on these cases that threaten to alter administrative law in fundamental ways. It was not clear from Trump v. CASA that that was gonna happen. It wasn’t clear from Bondi v. VanDerStok that that was gonna happen. And so, you’re wading into these things without adequate briefing, frankly, for the consequences of what you’re reeking. I think that’s a problem, too.

John Vecchione: I think even from the parties. Never mind the amicus.

Mark Chenowith: Oh, yeah, yeah, yeah. I think that’s right. I think that’s right. I mean, the title of his piece, Is VanDerStok an Accidental Landmark? Well, that was what some people called Chevron, too, right? So, these things do happen, and we have to be sensitive to them. And I think Will did a good job of jumping on this early and being a sentinel here. So, what do we do now?

John Vecchione: Well, first of all, I think we gotta look for every time the government cites this, right? And so, you have to watch for them citing it because, so far, I don’t think they’ve cited it in our cases, but we really have to push back on this and confine it to its facts and say, first of all, we’re making across the board challenge, certainly not just a facial challenge unless we have to be.

Mark Chenowith: Well, and to the Trump administration lawyers, if any of you are listening to this, you do not wanna be citing this at the Department of Justice. This is not your friend. This is the kind of thing that might reemerge in a future democrat administration, in a Klobuchar administration, or whoever – Josh Shapiro – whoever the democrats are putting up to be a future president. But this is, if you empower the administrative state with this kind of a decision, that is very short-sighted on your part. So, stop it.

John Vecchione: Yeah. I agree with that.

Mark Chenowith: Well, thank you to Will. And this piece, I should have said it was at yalejreg.com. That’s the notice and comment block at the Yale Journal and Regulation, and there are two pieces. One was, Is VanDerStok an Accidental Landmark? And I don’t see the date on that one, but it was a while ago.

John Vecchione: April 4th.

Mark Chenowith: April 4th of last year. And then, the update on VanDerStok deference, coauthored with Charles Yates, is just, I think, this past week. And that’s the one that caught my attention. So, if you wanna go read more about it, that’s where you can do it. And I think this is a really important issue, and anybody who cares about Chevron deference should certainly be aware of this and join the fight against it. You’ve been listening to Unwritten Law.

Automated Voice: As we like to say here at NCLA, let judges judge, let legislators legislate, and stop bureaucrats from doing either.

[End of Audio]

Duration: 12 minutes