Posts by kschmidt
How 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”
Read MoreCert Petition to Watch: Tennessee v. Kennedy Highlights Important Loper Bright Implementation Question
A recent cert petition asking the Supreme Court to vacate the Sixth Circuit’s decision in Tennessee v. Kennedy, and remand with instructions to dismiss the case as moot under United States v. Munsingwear, highlights an important Loper Bright implementation question that the Court may need to resolve in a future case: the scope of statutory…
Read MoreBloomberg Law Podcast Asks: Is the Administrative State Still Alive?
Bloomberg Law’s UnCommon Law podcast continues its series on the “story behind the fishing industry’s Chevron doctrine challenge.” This episode is on: “Chevron Deference Is Dead. Is the Administrative State Still Alive?”
Read MoreEight Circuit Applies Loper Bright in FCC Quadrennial Review Dispute
On July 23rd, in Zimmer Radio of Mid-Missouri v. FCC, the Eighth Circuit applied the Supreme Court’s decision in Loper Bright to a dispute over the FCC’s quadrennial review of its media ownership rules in a way that highlights a few key themes in Loper Bright statutory interpretation cases. Background on the FCC Order Under Section…
Read MoreLoper Bright Mentioned in Trump Tariff Case at Federal Circuit Oral Argument
Here’s how the Wall Street Journal Editorial Page described the exchange: Mr. Nixon’s tariffs for the most part also didn’t exceed the tariff “schedule that had already been enacted,” said another judge. Mr. Trump’s do. Mr. Shumate’s fall-back was that IEEPA was meant to be interpreted “very broadly.” But “is that really how we interpret…
Read MoreSCOTUSblog Term Review on Deference
At SCOTUSblog, Abbe R. Gluck writes about Kennedy v. Braidwood Management, and ” the broader question of how the court will grapple with questions of expertise in the wake of its 2024 decision overruling Chevron v. Natural Resources Defense Council, the key agency-deference case of the modern era.” Finally, for good measure, the opinion concludes with a…
Read MoreBloomberg Law on Appeals Courts and Loper
Bloomberg Law’s Robert Iafolla writes about how “circuit courts have started going in different directions on the level of deference judges should grant agencies.” Federal appeals courts are still figuring out how much weight to give to agencies’ views of their legal authority, a year after the US Supreme Court said judges must interpret relevant…
Read MoreNew Paper Argues for “Gray Doctrine” of Implicit Delegation
Harvard Law School’s Matthew Stephenson recently published “The Gray Area: Finding Implicit Delegation to Agencies After Loper Bright.” From the abstract: This Article argues that the canonical pre-Chevron cases Gray v. Powell and NLRB v. Hearst Publications, together with their antecedents and progeny, provide a useful framework for distinguishing those interpretive questions on which courts ought to find implicit…
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