When the Supreme Court overruled Chevron U.S.A. Inc. v. Natural Resources Defense Council in Loper Bright Enterprises v. Raimondo (2024), it leaned heavily on a powerful narrative: that Chevron deference allowed federal agencies to reverse their statutory interpretations freely and frequently, creating a fog of legal uncertainty that undermined private reliance interests. Dubbed “regulatory whiplash”—a phrase associated most prominently with Justice Neil Gorsuch—this account portrayed agencies as serial flip-floppers, changing interpretive positions based, as Justice Gorsuch put it, “on the shift of political winds.”
In a recent study, Professors Lisa Schultz Bressman and Kevin M. Stack of Vanderbilt Law School determined that agencies rarely reversed their interpretive positions once they were upheld under Chevron, undermining the regulatory whiplash narrative espoused by the Court in Loper Bright.
Bressman and Stack conducted what they believe is the first empirical investigation of agency reversal rates under Chevron. They identified all D.C. Circuit decisions between 2004 and 2024, focusing on notice-and-comment regulations, that affirmed an agency regulation under Chevron Step Two — the stage at which a court finds statutory ambiguity and endorses the agency’s interpretation as reasonable. They then tracked the subsequent regulatory history of each rule, asking a focused question: did the agency later reverse the very interpretation the court had upheld?
Their dataset covered ninety-six such decisions, spanning four presidential administrations and multiple high-profile regulatory domains. The time window was designed to allow ample opportunity for reversals to occur, particularly across partisan transitions in executive power — conditions that the whiplash narrative treats as most likely to produce flip-flopping.
Out of ninety-six decisions, the authors identified only three instances of genuine regulatory reversal (i.e., agency adoption of an interpretation wholly inconsistent with its prior one). The three reversals involved the FCC’s net neutrality reclassification, the Department of Labor’s Intermediate Bodies Rule under labor union reporting law, and the Department of Education’s Gainful Employment Rule.
They also found that while agencies frequently amended their regulations — adjusting effective dates, updating paperwork requirements, clarifying provisions, and refinements unrelated to the affirmed interpretation— they almost never reversed the legal interpretations a court had ratified.
“Across the landscape of regulation, agency interpretations did not flip-flop with the frequency or regularity that the whiplash narrative implies,” they write.
Regulatory Settlement, not Whiplash
Rather than framing regulatory law under Chevron through the whiplash narrative, Bressman and Stack identify a theme of regulatory settlement — a multi-branch equilibrium in which Congress delegates rulemaking authority, agencies exercise it, and judicial affirmance ratifies the resulting interpretive position.
“Our study suggests that regulatory law during this period can be understood as reflecting an underappreciated stable equilibrium,” they write.
The authors contend that this equilibrium makes sense “from the perspective of each actor.” For agencies, rulemaking is costly–once an interpretation has been affirmed, they have little incentive to change course unless it becomes unworkable or obsolete. Congress generally demonstrates little interest in overriding regulations. The study suggests that even when presidential administrations had the motive to reverse prior positions, they were rarely able to do so effectively.
Implications for Stare Decisis and Skidmore Deference
With their findings in mind, Bressman and Stack consider the extent to which stare decisis should apply to Chevron-era cases in the wake of Loper Bright (which overruled Chevron) and Corner Post, Inc. v. Board of Governors (which eliminated the statute of limitations on challenges to regulations). In Loper Bright, the Court provided assurance that stare decisis applies to prior judicial decisions upholding agency interpretations in reliance on Chevron, and that such reliance alone is not a “special justification” for overruling them. Bressman and Stack argue that their findings provide a strong reason for courts to honor prior Chevron precedent, to ensure the stability and predictability that proponents of the whiplash narrative sought in the Loper Bright decision.
“Courts should have an extraordinary justification for overruling or avoiding prior judicial decisions that upheld agency regulations under Chevron,” they write. “If genuinely interested in rule of law and institutional values, they should resist becoming the agents of regulatory change.”
The authors express concerns that the whiplash narrative will invite courts to treat any regulatory change as depriving agencies of respect they might otherwise be due under Skidmore going forward. Their data shows that agency amendments are typically the product of informed, adaptive rulemaking — not interpretive opportunism. Treating routine regulatory revision as a Skidmore penalty would punish exactly the kind of responsive, evidence-based governance that administrative law is designed to enable.
“It is one thing for courts to consider the effect of a regulatory change on private reliance interests,” they write, “but quite another to assume that any regulatory change necessarily causes legal instability and defeats private reliance interests, thus ousting a regulation from judicial respect if reviewed under Skidmore.”
As Bressman and Stack reiterate in their conclusion, their study offers a compelling rebuttal of the whiplash narrative, which they encourage courts to heed in the wake of Loper Bright.
“Our image of agencies matters,” they write. “Our study suggests that the whiplash narrative presents a misleading picture of agencies as perpetual flip-floppers, reversing their legal interpretations 180 degrees if given the leeway. This picture has the potential to promote legal instability and distort judicial review going forward, though it should not.”
“Regulatory Settlement, Stare Decisis, and Loper Bright” was published in The New York University Law Review, Volume 100, Number 6. Lisa Schultz Bressman is Vice Dean and David Daniels Allen Distinguished Chair in Law. Kevin Stack is the Lee S. and Charles A. Speir Chair in Law.