A Harvard Law Review Foreword shows why beating CMS on set-asides may help only one claimant.
Two years ago, Loper Bright Enterprises v. Raimondo told federal judges to stop deferring to agencies on the meaning of ambiguous statutes. For injured workers on Medicare, the decision raised a fair question. If the Centers for Medicare & Medicaid Services (CMS) built its workers' compensation Medicare set-aside (WCMSA) program on guidance rather than statute, can a court now strike it down?
A new Harvard Law Review Foreword by Georgetown's Stephen I. Vladeck, The Court Against the Courts, supplies a sobering answer. Loper Bright moved the power to read statutes down to the trial courts. The Supreme Court has since been pulling the power to enforce those readings back up to itself.
The Foreword's Warning
Vladeck argues that since early 2025 the Court has worked "a systematic transfer of authority away from the trial courts." The tools are familiar: the limits on universal injunctions in Trump v. CASA, Inc., heavy use of the emergency docket, and the channeling of claims into agency review schemes.
He addresses Loper Bright directly in footnote 224: "[E]ven where Loper Bright has expanded the interpretive authority of the district courts, the Court's restrictions on the scope of relief have often rendered that authority hollow." His example comes from immigration bond hearings. A district judge rejected the agency's reading under Loper Bright, but the ruling bound only the parties before the court, while thousands of similarly situated detainees litigated the same question elsewhere.
Where Set-Asides Stand
The Medicare Secondary Payer statute, 42 U.S.C. § 1395y(b)(2), makes Medicare secondary when a workers' compensation plan has paid, or can reasonably be expected to pay. It never uses the word "set-aside." The regulation CMS relies on, 42 C.F.R. § 411.46, addresses lump-sum settlements and lets CMS deny payment when a settlement does not adequately protect Medicare's interests.
Everything else, the review thresholds, the pricing methodology, the rated-age rules, lives in the WCMSA Reference Guide, Version 4.7 (Oct. 5, 2026). CMS concedes in Section 8.0 that "[t]here are no statutory or regulatory provisions requiring that you submit a WCMSA amount proposal to CMS for review."
In Loper Bright, the Court was direct: "Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires." The agency's view earns only the respect described in Skidmore v. Swift & Co. Add Azar v. Allina Health Services, which held that the Medicare Act's own notice-and-comment requirement, 42 U.S.C. § 1395hh(a)(2), reaches policy statements that establish or change a substantive legal standard, and the guidance-based set-aside regime looks vulnerable.
I made that argument in Chevron's Fall: Medicare Set-Asides Face Legal Shake-Up (Sept. 2024) and again in Chevron Gone, Benefits Threatened (June 2026). The Vladeck Foreword does not undercut the argument. It undercuts the payoff.
Three Ways the Shift Reaches CMS
1. The door is channeled. 42 U.S.C. § 1395ii incorporates the Social Security Act's review bar, and Shalala v. Illinois Council on Long Term Care and Heckler v. Ringer require most Medicare disputes to run through the agency before any court sees them. Vladeck faults the Court for selectively embracing this kind of channeling. A WCMSA dispute usually surfaces after settlement, when Medicare denies a claim for work-related care, and the beneficiary must climb the administrative appeals ladder. Loper Bright changes the standard a judge applies at the top of that ladder, not the years it takes to get there.
2. The win stays home. After Trump v. CASA, Inc., a district court ruling that CMS exceeded the statute generally protects only the parties before it. A claimant who defeats a set-aside demand in one courtroom does nothing for the next claimant across the hall. The CASA majority was careful to add, in footnote 10, that "[n]othing we say today resolves the distinct question whether the Administrative Procedure Act authorizes federal courts to vacate federal agency action," citing 5 U.S.C. § 706(2). But vacatur needs a final agency action to vacate. CMS has kept its set-aside rules in a "voluntary" reference guide rather than a final rule. That is the practical advantage of guidance for the agency.
3. The emergency docket waits. Vladeck documents how readily the Court has stayed lower court rulings against the federal government. A broad ruling against the WCMSA program would almost certainly draw an emergency application, and the recent record suggests the program would stay in force while the appeal ran.
What Does Not Change
Nothing in the Foreword alters what CMS must determine or how a set-aside is calculated. Settling parties still face 42 C.F.R. § 411.46, Section 111 reporting, and a Medicare system that will deny payment when it believes its interests were shifted. Judges of compensation will still expect Medicare's interests to be addressed before approving a settlement. Loper Bright remains the law; the open question is how far any single victory under it will travel.
Practice Pointers
● Keep using CMS review when a safe harbor matters. A party-specific court win is not a substitute for an approved WCMSA amount.
● Preserve Loper Bright and Allina objections in the administrative record so they are available at the judicial review stage.
● Watch for challenges framed as Rule 23(b)(2) class actions or brought by membership organizations, the vehicles CASA left open and the ones most likely to produce relief beyond a single claimant.
● Watch for any CMS move to codify set-aside rules through notice-and-comment. A final rule would be easier to challenge and to vacate.
The Bottom Line
Loper Bright gave claimants a better argument against CMS. The Court Against the Courts explains why that argument, even when it wins, may help only one claimant at a time. Until the Supreme Court resolves the APA vacatur question or Congress writes set-aside rules into the statute, the WCMSA Reference Guide will continue to operate as law for everyone who is not a party to a lawsuit.
Sources
1. Stephen I. Vladeck, The Court Against the Courts, 140 Harv. L. Rev. (forthcoming Nov. 2026) (draft July 15, 2026).
2. Stephen I. Vladeck, Bonus 238: The Court Against the Courts, One First (July 16, 2026).
3. Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).
4. Trump v. CASA, Inc., 606 U.S. 831, 847 n.10 (2025).
5. Azar v. Allina Health Services, 587 U.S. 566 (2019).
6. Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1 (2000).
7. Heckler v. Ringer, 466 U.S. 602 (1984).
8. Skidmore v. Swift & Co., 323 U.S. 134 (1944).
9. 42 U.S.C. § 1395y(b)(2) (Medicare Secondary Payer).
10. 42 U.S.C. § 1395hh(a)(2) (Medicare notice-and-comment).
11. 42 U.S.C. § 1395ii (application of 42 U.S.C. § 405(h)).
12. 42 C.F.R. § 411.46 (lump-sum payments).
13. 5 U.S.C. § 706 (scope of review).
14. Centers for Medicare & Medicaid Services, WCMSA Reference Guide, Version 4.7 (Oct. 5, 2026).
15. Jon L. Gelman, Chevron's Fall: Medicare Set-Asides Face Legal Shake-Up, Workers' Compensation (Sept. 27, 2024).
16. Jon L. Gelman, Chevron Gone, Benefits Threatened, Workers' Compensation (June 16, 2026).
Recommended Citation
Jon L. Gelman, Loper Bright Loses Its Reach, Workers' Compensation, workers-compensation.blogspot.com (Nov. 8, 2026), https://workers-compensation.blogspot.com/2026/11/loper-bright-loses-its-reach.html.
About the Author
Jon L. Gelman of Wayne, NJ, is the author of NJ Workers' Compensation Law (Thomson-Reuters) and co-author of the national treatise, Modern Workers' Compensation Law (Thomson-Reuters). For over five decades, the Law Offices of Jon L. Gelman have represented injured workers and their families who have suffered occupational accidents and illnesses.
Blog: Workers' Compensation
LinkedIn: JonGelman
LinkedIn Group: Injured Workers Law & Advocacy Group
Author: "Workers' Compensation Law" West-Thomson-Reuters
Blue Sky: jongelman@bsky.social
Substack: https://jongelman.substack.com
© 2026 Jon L. Gelman. All rights reserved.
Attorney Advertising
Prior results do not guarantee a similar outcome.
