Posts by kschmidt

Ohio State University’s Blaine G. Saito new research paper argues that Loper’s impact on tax law may be “more limited than expected.” From the abstract: Using transfer pricing as an example, the paper demonstrates that while technical regulatory details may survive challenge, fundamental changes would likely fail under the new regime. The arm’s length standard,…

A group of twenty Republican Senators that comprise a Post-Chevron working group released a 150-page report this morning. From the Executive Summary: The Post-Chevron Working Group is comprised of twenty Republican Senators. This report is broken down into three sections: 1. Proposed Legislative Response to Loper Bright; 2. Analysis of the Administrative State’s unpreparedness for…

Emory Law School’s Jonathan Remy Nash writes on “Chevron Stare Decisis in a Post-Loper Bright World” in the Iowa Law Review. The abstract: In its June 2024 decision in Loper Bright Enterprises v. Raimondo, the Supreme Court jettisoned the longstanding Chevron doctrine, which had directed courts to defer to agencies’ reasonable interpretations of ambiguous statutes. The Loper Bright Court attempted…

Yesterday, in Seven County Infrastructure Coalition v. Eagle County, Colorado, the Supreme Court addressed the scope of federal agencies’ obligations under the National Environmental Policy Act (NEPA) to study the environmental effects of proposed agency actions and prepare “detailed” reports, known as environmental impact statements. In the course of grappling with those questions, Justice Kavanaugh’s…

Bloomberg Law’s UnCommon Law podcast continues its series on the “story behind the fishing industry’s Chevron doctrine challenge.” This episode focuses on “the Supreme Court arguments that overturned Chevron.” Federal agencies expanding their power beyond congressional intent? Unelected bureaucrats making policy decisions? Regulatory whiplash?! According to the litigants urging the Supreme Court to strike down the Chevron doctrine in…

A recent Brookings article, titled “Will the Supreme Court’s Chevron decision undercut Trump’s unilateral presidency?,” suggests that “overturning of the Chevron doctrine may unintentionally weaken [President] Trump’s ability to govern unilaterally by empowering lower courts—often selected through strategic forum shopping by his opponents—to more freely block his executive actions.” That somewhat misunderstands the intent and…

The Brookings Institution published a commentary piece from Frank J. Thompson, Distinguished Professor of Public Affairs Emeritus & Faculty Director at Rutgers University, arguing that “[t]he Supreme Court’s overturning of the Chevron doctrine may unintentionally weaken Trump’s ability to govern unilaterally by empowering lower courts—often selected through strategic forum shopping by his opponents—to more freely block…

TechFreedom’s Corbin Barthold on the FedSoc Blog explores whether the Trump Administration has “Good Cause” to skip notice and comment in response to the Administration’s executive order directing agencies to repeal “unlawful, unnecessary, and onerous regulations:” New precedents often raise as many questions as they answer. Take the first case on the executive order’s list: Loper Bright…

Cass Sunstein’s latest piece on Loper Bright was published in the Duke Law Journal: Our Marbury: Loper Bright and the Administrative State. Here’s the abstract: Loper Bright, overruling Chevron, is unmistakably part of administrative law’s current “Grand Narrative,” which sees contemporary administrative agencies with suspicion, as a product of successive breaches of Article I, II,…