Featured Archives

Ryan Mulvey on Loper’s Impact on Rulemaking

AFP Foundation’s Ryan Mulvey in RealClearPolicy on how “Loper Bright has proven more immediately transformative for the executive branch — and it may still force Congress to confront responsibilities it has long avoided”: In practice, agencies are increasingly approaching rulemaking with an eye toward whether their interpretations can survive independent judicial review as the best reading…

EPA Administrator Zeldin Discusses Governing by Loper Bright’s “Single Best Reading”

In a recent Politico interview, when asked about a “fundamental shift” in the focus of the Environmental Protection Agency under his tenure, Administrator Lee Zeldin highlighted how the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo is paramount to his decision-making.

SCOTUS’s GVR in American Gas: Fact-Bound Deference After Loper Bright

Earlier this week, the Supreme Court granted the petition for writ of certiorari in American Gas Association v. Department of Energy, vacated the D.C. Circuit’s judgment below, and remanded for reconsideration “in light of the position asserted by the Solicitor General” in the government’s response brief. This move revives the fight over the validity of the Department of Energy’s (“DOE”) efficiency standards for residential furnaces and commercial water heaters. More importantly, the GVR puts front and center on remand a question that courts are already grappling…

Loper Bright Surfaces in the Supreme Court’s Opinion in Rutherford v. United States  

Last week, in Rutherford v. United States, the Court held 6-3 that certain nonretroactive changes to federal mandatory minimum sentences effectuated by the First Step Act (FSA) do not qualify as an “extraordinary and compelling reason” that can justify a reduced sentence under the “compassionate release” exception to the general rule against district courts modifying…

Commentators Point to Loper Bright in Coming Fight Over FCC, FTC

Several commentators have noted the potential relevance of the Supreme Court’s consequential decision in Loper Bright Enterprises v. Raimondo to coming fights over the authority of the Federal Communications Commission and Federal Trade Commission. Ed Whelan in National Review recently suggested the FCC’s attempts to “thwart[] judicial review of the legality of . . . license transfers,” which will soon be considered…

Professor Aaron Nielson on the Dangers of a Post-Chevron “Science Charade”

Professor Aaron Nielson has published some fascinating commentary over at Civitas Outlook in which he explores the dangers of agencies misusing science—or what they claim to be science—to avoid the impacts of Loper Bright and the end of Chevron deference.

Can There Still Be “Implicit Delegation After Loper Bright”?

As highlighted last week, Liberty University Law Review recently published a special issue containing essays submitted as part of its symposium on Loper Bright. But there is other recent scholarship on Loper Bright worth highlighting. One article in particular—“The Gray Area: Finding Implicit Delegation to Agencies After Loper Bright,” by Harvard Law professor Matthew Stephenson—deserves…

The Dangerous Normalization of Emergency Powers

Recent Presidential administrations of both parties have demonstrated just how dangerous unchecked emergency powers can be. Unless Congress acts now, the next president will inherit, and almost certainly expand, a set of extraordinary authorities that were never intended to address long-standing policy problems and continue to use them as an “end-run around Congress.” The National…

Liberty University Law Review Publishes Special Loper Bright Symposium Issue

Last fall, Liberty University School of Law hosted a special symposium entitled “Loper Bright: A New Era of Administrative Law.” As we previously reported, the event included several panel discussions about the impact of the Supreme Court’s landmark decision, as well as a special keynote address by Chief Judge Jennifer Walker Elrod of the U.S.…

Federal Trade Commission Agrees To Permanently End Administrative Investigation of Nonprofit In Win For the First Amendment, Due Process, and the Rule of Law

Earlier this week, Media Matters, an organization that engages in speech protected by the First Amendment, announced a historic settlement with the Federal Trade Commission, permanently ending the agency’s investigation into Media Matters after it successfully blocked the FTC’s administrative demands in a pre-enforcement constitutional challenge. Whether one agrees with Media Matters’s message or not,…