Posts by kschmidt
Restoring the Constitution’s Separation of Powers: Chevron’s Demise and the Promise of Loper Bright
On September 17, 1787—today, 238 years ago—a momentous event took place in Philadelphia, Pennsylvania. Delegates from the thirteen States, who were assembled in convention, signed our United States Constitution. Although the Constitution was not ratified until the next year, its completion and presentation to the States for adoption marked the beginning of a radical restructuring…
Read MoreSecond Circuit Upholds FCC Forfeiture After Identifying Delegation of Discretionary Authority as Required Under Loper Bright
Last week, in Verizon Communications Inc. v. Federal Communications Commission, the Second Circuit rejected a petition for review of a forfeiture order imposing nearly $47 million in penalties for violation of the confidentiality provisions of the federal Communications Act. In doing so, the Circuit offered an important example of how courts will apply the de…
Read MoreNew Article on Loper Bright, Interpretive Rules, and Sub-regulatory Guidance
The University of New Hampshire Law Review recently published an article by University of Tulsa law professor Gwendolyn Savitz entitled “Interpretive Rules are the New Regulations: Agency Guidance After Loper Bright.” The article explores the impact Loper Bright might have on agencies turning to interpretive rules to bypass notice-and-comment rulemaking and, potentially, searching judicial review…
Read MoreD.C. Circuit Accepts FERC Regulatory Interpretation Previously Upheld under Chevron Step-Two
In a long-awaited remand decision, the D.C. Circuit in Solar Energy Industries Ass’n v. Federal Energy Regulatory Commission upheld FERC’s regulatory interpretation of the Public Utility Regulatory Policies Act (“PURPA”). The Circuit previously sided with FERC last year when it concluded the agency’s position was “reasonable” under Chevron Step Two, in light of supposed statutory…
Read MorePacific Legal Foundation Launches Nondelegation Project
The Pacific Legal Foundation launched a new tool that “uses artificial intelligence to trace every federal regulation back to the law that supposedly authorizes it.”
Read MoreEighth Circuit Decision Striking Down Biden EV Subsidy Highlights Loper Bright’s Impact
On Friday, in Iowa v. Wright, the Eighth Circuit vacated an April 2024 Department of Energy regulation changing how it calculated the “petroleum equivalency factor” used to determine how car and truck manufacturers can use electric vehicles to comply with Corporate Average Fuel Economy standards set by the National Highway Traffic Safety Administration. Two months…
Read MoreSenator Eric Schmitt Questions Third Circuit Nominee on Loper Impact
During yesterday’s Senate Judiciary hearing on nominations, Senator Eric Schmitt (R-MO) questioned nominee to be United States Circuit Judge for the Third Circuit Jennifer L. Mascott on the impact of the Loper Bright decision. Video starting at 1:51:26 here.
Read MoreHow vague statutory language enabled the Biden administration’s CHIPS Act overreach, and what Congress must do next
My latest op-ed in the Washington Reporter uses FOIA docs from the CHIPS Act implementation to demonstrate how ambiguous laws empower unelected bureaucrats and undermine democratic accountability: When Congress rejected sweeping child care subsidies in the Inflation Reduction Act, the Biden administration’s Commerce Secretary Gina Raimondo reportedly told her staff, “if Congress wasn’t going to do what they…
Read MoreAFP Foundation’s Ryan Mulvey on Montana Talks with Aaron Flint
AFP Foundation Senior Policy Counsel Ryan Mulvey joined Montana Talk’s Aaron Flint live from the Western Caucus Foundation meeting to discuss Loper Bright. Featuring: Interview starts at 28:20.
Read MoreBloomberg Law Podcast Finale: After Loper Bright, Congress Weighs Sweating the Small Stuff
Bloomberg Law’s UnCommon Law podcast finishes its series on the “story behind the fishing industry’s Chevron doctrine challenge.” This episode is on: “After Loper Bright, Congress Weighs Sweating the Small Stuff”
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