Posts by James Valvo

The Court of International Trade recently invalidated President Trump’s tariffs under the International Emergency Economic Powers Act of 1977 (“IEEPA”).  The government argued, among other things, that the court could not consider the case because of the political question doctrine. One reason that doctrine may apply is due to “a lack of judicially discoverable and…

As Loper Bright continues to work its way through the courts, it’s also been rapidly added to administrative law casebooks across the country. University of Arizona – James E. Rogers College of Law Professors Shalev Gad Roisman and Oren Tamir had a novel idea to do a book review of how Loper, and other new…

Eli Nachmany has joined the discussion on the Yale Notice & Comment blog about the interaction between the APA’s good cause exception, Loper Bright, and the Trump Administration’s efforts to root out existing unlawful regulations: Cary Coglianese and Daniel Walters recently published an interesting Notice & Comment post about the President’s memorandum, suggesting that the move shows…

The Departments of the Interior and Commerce have proposed to rescind an Endangered Species Act rule defining “harm” because it “do[es] not accord with the single, best meaning of the statutory text” and instead they will “rest on the statutory definition of ‘take.’” This proposal is in line with a White House directive to remedy…

Earlier this week, on April 9, 2025, President Trump issued a new memorandum entitled “Directing the Repeal of Unlawful Regulations.”  The memo, which builds on directions set out in Executive Order 14219 (Feb. 19, 2025), instructs the heads of all executive branch agencies to prepare for repealing “facially unlawful regulations” after April 20, 2025. 

Last fall, Lesko v. United States—an appeal of a decision from the Court of Federal Claims about an Office of Personnel Management (“OPM”) regulation—was argued before a panel of the U.S. Court of Appeals for the Federal Circuit.  This week, however, following a sua sponte poll of the Circuit’s full bench, the court ordered the…

The EPA recently announced that it will formally reconsider its 2009 Endangerment Finding in which it deemed carbon dioxide, methane, and four other gases as “air pollutants,” as well as “all of its prior regulations and actions that rely on the Endangerment Finding.” That is a big deal because the Endangerment Finding has been used to justify…

Professors Kristin Hickman and Amy Wildermuth have a new article on Loper’s two buckets: “independent judgment for mere statutory interpretation and reasoned decisionmaking for exercises of delegated policymaking discretion.” Abstract By overturning Chevron, the Supreme Court’s Loper Bright decision clearly changed the way in which courts must approach agency actions interpreting statutes. But Loper Bright stopped well short of declaring…

Two cases interpreting the Fair Labor Standards Act in the federal courts in Texas  have applied the Supreme Court’s Loper Bright decision to overturn to two separate Department of Labor regulations. Tipped Employees In the first case, Restaurant Law Center v. U.S. Department of Labor, 120 F.4th 163 (5th Cir. 2024), the Fifth Circuit overruled…