Records over deference: after Loper Bright, an agency’s best defense sat in its files
Four Supreme Court decisions in five days ended deference on statutory meaning, kept old rules open to new challengers, faulted an agency’s explanation and moved penalty cases to juries. What agencies could still defend lived in their records, which most managed badly.
Looking Back revisits one week at a time, from January 2020 to today, and asks what it meant for the banks, health systems and public agencies we serve. The series was written in 2026, with the benefit of hindsight, and each article says which week it looks back on.
The week
On June 28, 2024, the Supreme Court decided Loper Bright Enterprises v. Raimondo and overruled the Chevron doctrine. Courts must now use their own judgment on what a statute means, though they may give respect to an agency’s reasoned views, and earlier cases decided under Chevron keep their effect. On July 1, in Corner Post v. Board of Governors of the Federal Reserve System, the Court held that the six-year window to challenge an agency action under the Administrative Procedure Act opens when the plaintiff is injured. A newly formed business can therefore challenge an old rule. On June 27, SEC v. Jarkesy held that the SEC must bring civil penalty claims for securities fraud before a jury. The same day, in Ohio v. EPA, it paused an EPA air rule, finding the agency had likely failed to explain its approach in light of concerns raised in comments.
Earlier in this series we argued, after West Virginia v. EPA in 2022, that a rule’s survival odds belonged in the compliance plan, and that agencies should review which programs rested on broad readings of old statutes. Loper Bright went further on legal interpretation. It also left one ground largely intact. Courts still review an agency’s factual findings, technical judgments and policy choices under the APA’s reasoned-decision standard. Where a statute delegates discretion, the court checks that the agency stayed within it and explained itself. In practice, that shifts an agency’s defense from its reading of the statute to the quality of its record: what it found, what it considered, and how it answered objections. The four decisions together test the record in three different settings. A rule’s record is tested when it is adopted. It is tested again across its whole life, because Corner Post keeps it open to challenge. And enforcement records are tested in a courtroom, because Jarkesy moves penalty cases to juries. Each setting puts a different demand on how agencies keep information.
The record when a rule is adopted
Ohio v. EPA was decided the day before Loper Bright and drew less attention. Its holding was narrow and procedural: the agency had not explained why its plan still made sense if some states dropped out, a concern raised in comments. That is a records failure as much as a legal one. Comment handling in many agencies runs on spreadsheets and email. Thousands of comments are grouped by staff, summarized and answered in a preamble. When a significant comment is lost in that process, the gap can decide the case.
The fix is a system. A comment management tool that tags each comment by issue, links it to a response and a responsible analyst, and tracks closure lets counsel see unaddressed issues before publication. Technical analyses need the same discipline. A cost-benefit model, a security baseline or a data quality study should be stored with its inputs, code, version and assumptions, so the agency can show exactly what supported the rule. Since courts now read the statute fresh, the agency’s expert findings are where it can still earn respect. They need to be findable and reproducible.
There is a trade-off. A thorough record slows rulemaking, and staff time spent on comment tracking and model documentation is time not spent on new rules. For agencies with thin policy staff, the practical answer is tiering: full discipline for economically significant or contested rules, lighter handling for routine technical amendments.
The record across a rule’s life
Corner Post removed the comfort of age. A rule adopted in 2005 can be challenged in 2030 by a company formed in 2028. The agency will then need the 2005 docket, the analyses behind it, and evidence of how the rule has worked since. Records schedules often treat rulemaking support files as temporary after a set period. Legacy dockets may sit in retired systems or paper archives. Models may run only on software that no longer exists.
Agency records officers and general counsel should agree which rules are high value and exposed. For those, they should extend retention, migrate dockets into current systems, and keep models reproducible. A short program performance file for each major rule, updated periodically with outcomes data, gives the agency evidence that the rule works as intended. That evidence also helps if Congress is asked to clarify authority. It costs far less to maintain steadily than to reconstruct under a litigation deadline. For a technology rule, that file might hold adoption rates, incident or complaint trends, and the agency’s own assessment of whether the requirement still fits current systems. Where the answer is no, the file also tells the agency to amend the rule before a challenger forces the question.
The record in enforcement
Jarkesy concerned the SEC, but its reasoning reaches other agencies that seek civil penalties in in-house proceedings for claims resembling common-law actions. Cases moved to federal court face the Federal Rules of Evidence, full discovery and a lay jury. Agencies used to building cases for an administrative law judge must now build them for twelve citizens and opposing counsel with subpoena power.
That changes evidence handling. Examination workpapers, digital evidence and investigative files need documented chain of custody and preservation. Litigation holds must reach cloud mailboxes, collaboration tools and messaging apps where staff actually discuss cases. E-discovery capacity, often contracted, needs to scale to produce agency records on court timelines. Expert analyses must be explainable to non-specialists. Enforcement leaders should expect to bring fewer contested penalty cases and to rely more on supervision, settlements and corrective action plans. Those also depend on a clean record, since a respondent who believes the agency cannot prove its case at trial has less reason to settle.
Regulated organizations face the mirror image. Their own records of compliance decisions, control testing and correspondence with regulators will matter more when disputes reach court. Organizations should check with counsel on how specific rules that affect them are being challenged.
With hindsight
The decisions were applied quickly. In January 2025 the Sixth Circuit struck down the FCC’s net neutrality rules, relying on Loper Bright to read the statute itself. In June 2025, in McLaughlin Chiropractic Associates v. McKesson, the Supreme Court held that district courts in enforcement cases are not bound by an agency’s interpretation of the statute and must decide its meaning themselves, giving the agency appropriate respect.
The executive branch also used the decisions. An April 2025 presidential memorandum directed agencies to identify and repeal regulations it considered unlawful under a list of Supreme Court cases led by Loper Bright, including Jarkesy and Ohio v. EPA. Many rules continued in force, and courts upheld agencies whose authority was clear and whose reasoning was well documented. Rescission itself needs a reasoned record under the APA. The record has therefore mattered in both directions: to defend rules, and to change them.