Chevron's Retirement and ERISA's Future: Judicial Review of EBSA Rules After Loper

• Pages: 201-232
• Date: 01 January 2026
• Published date: 01 January 2026
• Author: Lucian Wells
• Subject Matter: Administrative & Public Law

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201

CHEVRON’S RETIREMENT AND ERISA’S

FUTURE: JUDICIAL REVIEW OF EBSA

RULES AFTER LOPER

LUCIAN WELLS*

INTRODUCTION ....................................................................................... 202

I. ERISA’S HISTORY AND PURPOSE ................................................... 205

A. The Origin of ERISA ................................................................. 205

B. Regulatory Agency Oversight of ERISA Plans .................................. 207

C. Frameworks of Judicial Review in ERISA Litigation ....................... 209

II. JUDICIAL REVIEW OF ERISA CLAIMS UNDER CHEVRON ................ 212

A. The Role of Chevron Deference ................................................... 212

B. Firestone as an ERISA-Specific Framework for Deference ............... 214

III. JUDICIAL REVIEW OF ERISA CLAIMS UNDER LOPER ..................... 217

A. Loper and the End of Chevron Deference .................................... 217

B. Challenges to DOL ESG Rule ...................................................... 219

C. Challenges to DOL Fiduciary Rule ................................................ 221

D. Challenges to DOL Tobacco Surcharge Rule ................................... 223

E. Challenges to DOL Procedural Rules ............................................. 225

IV. RECOMMENDATIONS ....................................................................... 227

A. Reinforce Plan Administrator Discretion Under Firestone ................ 227

B. Strengthen Rulemaking Under Skidmore ....................................... 228

C. Combine Administrative Tools to Promote Predictability .................... 230

CONCLUSION ........................................................................................... 231

* J.D. Candidate, American University Washington College of Law (2027); B.A. in Polit-

ical Science, Tulane University (2020). I am grateful to the staff of the Administrative Law Review

for their careful editing and dedication to this piece. I also thank the many ERISA practition-

ers who generously shared their time and expertise, part icularly David Cohen, whose contri-

butions truly defined this Comment. A special thank you to the ERISA Group at STB, which

first sparked my interest in retirement and benefits law. Most importantly, I thank my friends

and family for their constant support throughout this process.

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202 ADMINISTRATIVE LAW REVIEW [78:1

INTRODUCTION

Millions of Americans with a 401(k) plan, an Individual Retirement Ac-

count (IRA), a pension, or simply a dream of one day retiring to Florida,

benefit from but may have never heard of the Employee Retirement Income

Security Act of 1974 (ERISA).1 Enacted in the wake of a massive independ-

ent automaker’s collapse and a fraud conviction for the notorious labor

leader, Jimmy Hoffa, ERISA promised to safeguard the retirement security

of millions of American workers by ensuring the proper management of ben-

efit plan assets.2 Over fifty years after ERISA’s passage, the landscape for

benefit plans in the U.S. has changed dramatically and the administrative

agencies responsible for overseeing these plans are facing new challenges in

keeping up with rapid developments in the financial sector and trends in ben-

efit plan offerings.3 A growing number of individuals find themselves respon-

sible for managing their own retirement savings, and many are unable to set

aside enough money for their future needs.4 Many others are forced to sac-

rifice tax advantages by withdrawing early, or find themselves struggling to

determine how much to withdraw during retirement.5 As high-risk, high-

return investment classes, such as crypto, become more mainstream, spon-

sors of such investments place increased emphasis on tapping into the well of

1. 29 U.S.C. §§1001–1461.

2. Taylor Heinrich, ERISA: A Journey from a Promise of Protection to a Retirement Crisis–50th

Anniversary Edition, PIETRAGALLO BUS. BLOG (May 29, 2024), https://www.pietragallo.com/

business-blog/erisa-a-journey-from-a-promise-of-protection-to-a-retirement-crisis-50th-an-

niversary-edition/ [https://perma.cc/ALJ5-UA8F].

3. See Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024); see also Heinr ich, supra

note 2 (“By the end of 2023, total U.S. retirement assets were 38.4 trillion dollars; 3.2 trillion

dollars, or 8.3% (down from 37. 1% in 1975), of those assets, were in private sector defined

benefit plans.”).

4. See Jill E. Fisch, Annamaria Lusardi & Andrea Hasler, Defined Contribution Plans and

the Challenge of Financial Illiteracy, 105 CORNELL L. REV. 741, 742 (2020) (“[E]mployers have

overwhelmingly switched to defined contribution plans, commonly known as 401(k) plans,

in which an individual employee’s decisions about how much to save for retirement and

how to invest that savings determine the benefits that the employee will have available upon

retirement.”).

5. See Brian J. O’Connor, You Saved and Saved for Retirement. Now You Need a Plan to Cash Out.,

N.Y. TIMES (July 12, 2025), https://www.nytimes.com/2025/07/12/business/retirement-as-

sets-savings.html [https://perma.cc/NEC7-H34C]; see also Anne Tergesen, Americans See Their

401(k)s Not Just as Nest Egg s but as Rainy Day Funds, WALL ST. J. (July 26, 2025),

https://www.wsj.com/personal-finance/retirement/401k-withdrawal-emergency-savings-25

926369 [https://perma.cc/V57K-XC2U].

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2026] CHEVRON’S RETIREMENT AND ERISA’S FUTURE 203

benefit plan assets.6 Consequently, the importance of ERISA’s protections

has never been more pronounced.7

Despite its noble ambitions, ERISA has drawn criticism for both failing to

fully deliver on its promise and, in some ways, creating more procedural bar-

riers for the very plan participants Congress intended to protect.8 Several

judges have struggled to interpret the statute, even ridiculing it in their opin-

ions.9 Others, like the Honorable William M. Acker Jr.—who declared a

willingness to believe that within ERISA lurked “a redeeming feature,”—

resisted the cynicism.10 Despite conflicting sentiments, it is clear today, over

half a century since its passage, that ERISA has withstood the test of time.11

The uncertain future of administrative law creates additional obstacles for

plan participants, administrators, and plan asset managers, all of whom are

now faced with less clear guidance on their rights and responsibilities under

ERISA.12 In 2024, the U.S. Supreme Court overturned Chevron U.S.A., Inc.

v. Natural Resources Defense Council, Inc.,13 thus requiring courts to review agency

interpretations of law de novo under Section 706 of the Administrative Pro-

cedure Act (APA).14 This means that agencies like the Department of Labor

(DOL or the Department) (through the Employee Benefits Security Admin-

istration (EBSA)) now bear the burden of persuading courts of the veracity of

their views without the benefit of interpretive supremacy.15

6. Tara Siegel Bernard, Trump Order Clears Way for Crypto and Private Equity in 401(k)s, N.Y.

TIMES (Aug. 7, 2025), https://www.nytimes.com/2025/08/07/business/trump-401k-crypto

.html [https://perma.cc/J4PX-EQH8].

7. See id.

8. See id. (citing a shift of risk to employees rather than plan sponsors). See also William

M. Acker Jr., Can the Courts Rescue ERISA?, 29 CUMB. L. REV. 285 (1999) (discussing preemp-

tions role in limiting claimants causes of actions).

9. See, e.g., DiFelice v. Aetna U.S. Heal thcare, 346 F.3d 442, 459 (3d Cir. 2003) (Becker,

J., concurring) (“In sum, ERISA's remedial scheme gives HMOs every incentive to act in their

own and not in their beneficiaries best interest while simultaneously making it incredibly dif-

ficult for plan participants to pursue what meager remedies they possess, a confounding result

for a statute whose original purpose was to protect employees.”).

10. Florence Nightingale Nursing Serv. v. Blue Cross & Blue Shield of Ala., 832 F. Supp.

1456, 1457 (N.D. Ala. 1993).

11. See Acker, supra note 8, at 285 (“Since writing Flore nce Nightingale, I have changed my

mind. ERISA is beyond redempti on.”).

12. Utah v. Su, 109 F.4th 313, 318–19 (5th Cir. 2024).

13. 467 U.S. 837 (1984).

14. See Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024); see also Administrative

Procedure Act, 5 U.S.C. § 706 (2023).

15. See Loper, 144 S. Ct. 2244.