I will grouse a bit more about VanDerStock. If our case was such a loser, it should have been easy enough for the Court to reject all of our arguments, and find the government had the best reading of the statute. That was the upshot of Loper Bright. Instead, for reasons that continue to confound me, Justice Gorsuch of all people decided to extend the Salerno standard to administrative challenges, thus greenlighting for the government a doctrine far more deferential than Chevron. I vigorously disagree with Bostock and McGirt, but understand why Gorsuch did what he did. But for the life of me, I cannot fathom why VanDerStock came out the way it did. Whatever good was done by jettisoning Chevron has now been unraveled.
And you don't have to take my word for it. Will Yeatman and Charles Yates of the Pacific Legal Foundation query if VanDerStock is an "accidental landmark." I didn't realize that DOJ lawyers were already pushing Salerno as a Chevron alternative:
The Salerno standard is another Chevron replacement that has been shopped by the government in the wake of Loper Bright. For example, last year in a challenge brought by Pacific Legal Foundation (where we work) to a 2023 Environmental Protection Agency and Department of the Army Clean Water Act regulation, the Justice Department invoked the "no set of circumstances"standard as a reason for that challenge to fail. Of course, the Salerno approach is unique among these Chevron substitutes, in that the "no set of circumstances" framework is far more favorable to the government than even Chevron ever was.
For practitioners and scholars of administrative law, the crucial concrete result from VanDerStok is that the Court linked APA § 706(C) with facial review. Already, the Justice Department is on the hunt for alternatives to Chevron in a post-Loper world. After VanDerStok, we can expect government lawyers to more freely argue for facial review of an agency's statutory interpretations under the "no set of circumstances" test.
