Disqualifying the “Clearly Established” Test: Loper Bright’s Implications for Qualified Immunity

Blake Perry*

Judges, scholars, and policymakers have criticized the Supreme Court’s qualified immunity jurisprudence on various legal, historical, and policy grounds. Drawing on the Court’s seminal decision in Loper Bright Enterprises v. Raimondo, this Note adds a new tool to the qualified immunity critic’s arsenal. In Loper Bright, the Court eliminated Chevron deference—the judicial practice of deferring to an agency’s interpretation of an ambiguous statute—because identifying statutory ambiguity, the “defining feature” of the Chevron doctrine, proved “unworkable.” The Court should apply this reasoning to its qualified immunity doctrine, which relies similarly on a clarity test: If no “clearly established” law prohibited an officer’s conduct, qualified immunity shields the officer from liability. This clarity test, too, has proved unworkable. Furthermore, the jurisprudential similarities between Chevron deference and qualified immunity— both are functional, common law doctrines that promote executive efficiency and temper statutes that protect rights from abuse—support applying Loper Bright’s reasoning regarding Chevron’s statutory ambiguity test to qualified immunity’s “clearly established” test.

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*J.D. Candidate, Notre Dame Law School, 2026. I would like to thank Professor Jeff Pojanowski, Tim Steininger, Simon Brake, Bennett Rogers, and Cecilia Honan for their guidance and feedback throughout the writing process. I would also like to thank my friends on the Notre Dame Law Review for their diligent edits. Finally, I would like to thank my family for their continued support of my legal education.