Executive Branch Power Grows as Loper Bright Order Fades: Werfel

What was billed as a revolution in the balance between Congress and the executive branch may in practice have unleashed the very impulse toward unilateral action it was meant to curb.

When I was IRS commissioner, the US Supreme Court issued its decision in Loper Bright v. Raimondo. That day, less than 16 months ago, a team of government lawyers gathered in my office to explain that this was no ordinary ruling—it was a sea change in authority.

The justices, they said, had moved away from the Chevron doctrine, which had given federal agencies freedom to interpret laws when the language was ambiguous, as long as the interpretation was reasonable. The lawyers warned that now, if the IRS wanted to claim authority, it had to be in the law. No more filling in gaps. No more creative inference.

It seemed then that the executive branch had been permanently diminished by the Supreme Court. Today? I’m scratching my head as I watch the current administration dramatically expand its power by reading into the law implied, not explicit, authorities.

For example, the IRS is now sharing taxpayer data with Immigration and Customs Enforcement, despite no explicit authorization from Congress—a matter that’s playing out now in the US Court of Appeals for the District of Columbia Circuit. The administration also has asserted the power to remove career civil servants and even appointees at independent oversight bodies, moves that statutes were designed to shield from politics.

Beyond personnel, there are sweeping efforts to restructure or even eliminate federal agencies outright, initiatives pursued under claimed executive authority rather than new legislative mandates.

So I’m left wondering: Whatever happened to Loper Bright?

One answer offered by legal experts is that Loper Bright is solely about regulations—that it only matters when an agency acts through notice-and-comment rulemaking and asks a court to defer to its interpretation of an ambiguous statute. On this narrow reading, executive branch actions such as data sharing, enforcement discretion, or even agency restructuring might escape Loper Bright’s reach altogether.

If that’s the case, we may have created a dangerous incentive. Federal agencies increasingly could choose to act outside of the rulemaking process, precisely to avoid the new constraints of Loper Bright. The very doctrine that was supposed to cabin agency authority could instead drive more policy making into the shadows at the drop of a hat, without the transparency that rulemaking requires.

The irony isn’t hypothetical. It’s already playing out in one of the most consequential tests of executive authority unfolding inside the IRS.

Nowhere is the tension sharper than in the administration’s interpretation of Section 6103 of the Internal Revenue Code—one of the most tightly drawn provisions in all of tax law. Despite its meticulous limits and its silence on immigration, the Trump administration has concluded that it may share confidential taxpayer data with the Department of Homeland Security for immigration enforcement.

The legal hook is an “implied” authority—an argument that a broad data-sharing program can fit beneath what was once a narrow allowance for case-specific criminal investigations.

In the world before Loper, I might have seen the case for such reasoning, though even then I would have been skeptical. After Loper, I would have thought there was no chance. If the IRS wanted to share taxpayer information with an agency not explicitly named in the statute, it would need to go to Congress and get the law changed.

Yet here we are. Taxpayer data is flowing, and lawsuits are flying. One of them, Centro de Trabajadores v. Bessent, was the focus of a hearing at the DC Circuit on Oct. 3. The judges pressed government lawyers on procedural details, such as whether Section 6103 requires data-sharing agreements to be between the IRS and the DHS Secretary rather than ICE.

But the larger question was missing: After Loper Bright, can an agency rely on “implied” authority at all?

We deserve clarity on this point, because the stakes are immense. The Supreme Court itself invited a recalibration of the balance between Congress and executive branch. Yet in practice, executive action seems to be rolling along as if Loper Bright never happened. The current trend feels less like Chevron’s demise and more like its expansion.

If Loper really changed the law, we need to see it in action. If it didn’t, then agencies and the public deserve to know that, too.

The case is Loper Bright Enterprises v. Raimondo, U.S., 22-451, 6/28/24.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Danny Werfel was IRS commissioner from 2023 to 2025 and is now executive in residence at the Johns Hopkins School of Government and Policy and a distinguished fellow at the Polis Center for Politics at Duke University.

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