The End of Chevron Creates Uncertainty for the AbilityOne Program

One June 28^th, the Supreme Court issued its opinion in Loper Bright Enterprises v. Raimondo, No. 22-451, 603 U.S. __ (2024), overturning Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984), which, for the past 40 years, had afforded federal administrative agencies deference when reasonably interpreting ambiguous federal statutes. A complete explanation of Chevron deference and the impact of Loper Bright to the administrative state in general can be found here.

While the end of Chevron is sure to take power away from certain federal agencies, it is less clear what, if any, impact there may be on the AbilityOne Program. Loper Bright, while explicitly overturning Chevron, does not call into question situations in which an agency is given explicit rulemaking authority by Congress. The JWOD Act grants the AbilityOne Commission the explicit authority to (1) maintain the Procurement List; (2) determine the fair market price of items on the Procurement List; and (3) promulgate rules and regulations to effectuate the Program. The Commission has acted on its mandate and developed regulations to guide the Program that go far beyond the plain language of the JWOD Act. However, because the Commission was given explicit authority from Congress to develop these regulations, it likely will still be afforded deference by courts in the event there is a challenge to the Commission’s actions.

In addition to not addressing explicit rulemaking authority given to an agency, the Court in Loper Bright makes clear that this decision does not overturn any existing agency action or cases addressing agency action. Instead, this decision simply provides that Courts “must exercise their independent judgment in deciding whether an agency has acted within its statutory authority” and “may not defer” to the agency’s interpretation in any in future challenges to agency action.

Loper Bright is likely to lead to an increase in challenges to agency action, and an increase in courts overturning agency action, but it may not immediately impact the AbilityOne Program. To successfully challenge the Commission’s rulemaking, a challenger will likely need to either show the rulemaking goes beyond the explicit authority afforded to the Commission in the JWOD Act, or the challenger will need to overcome the deference that has already been given to the Commission under existing law. For now, it looks like the AbilityOne Program will continue with business as usual, but as courts begin interpreting Loper Bright and challenges to agency action increase, the Commission and the Program may eventually find themselves in a challenger’s crosshairs.