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Last week, my colleague, Michael Pepson, noted that Loper Bright might come up during oral argument in Monsanto Company v. Durnell, a case that raises the question of whether the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) preempts state labeling requirements.  Although neither party cited Loper Bright during briefing on the petition for writ of certiorari, the case did come up in the respondent’s answering brief on the merits.  Specifically, Mr. Durnell argued that, under Loper Bright, the onus was on Monsanto to…

The past two months have seen Loper Bright play an important role in the adjudication of several appeals across multiple circuit courts.  Here are the instances where Loper Bright, and the end of Chevron deference, was particularly notable.

The Yale Journal on Regulation’s blog, Notice & Comment, has published the second half of a two-part series exploring the impact of Loper Bright on the two major political parties and their members in Congress.    The first half, published last month, explored how Chevron deference possibly served a uniting function for the GOP, and that its elimination by the Supreme Court now leaves an “open question whether business-minded conservatives and antistatist conservatives can…

The Supreme Court will hear oral argument next week in Monsanto Company v. Durnell. The question presented is “[w]hether the Federal Insecticide, Fungicide, and Rodenticide Act [(“FIFRA”)] preempts a label-based failure-to warn claim where EPA has not required the warning.” Neither party cited Loper Bright in their cert-stage briefing. Nor did the Missouri state-court decisions…

By Ryan P. Mulvey & Michael Pepson  The Sixth Circuit’s recent decision in Department of Labor v. Americare Healthcare Services is a useful indicator of how courts operationalize Loper Bright when a statute contains an express delegation of authority to an agency.  The case also spotlights related questions about the scope of statutory stare decisis for Chevron-era precedents, and the status of broad “housekeeping” statutes that agencies may claim confer legislative rulemaking authority. 

The Supreme Court has granted the petition for writ of certiorari in Beaird v. United States to review whether Stinson v. United States “still correctly states the rule for the deference that courts must give the commentary to the Sentencing Guidelines.”  This development not only opens the door for reconsideration of another judicial-deference doctrine in…

In a recent post for the Yale Journal on Regulation’s “Notice & Comment” blog, law professor Daniel Deacon has previewed a draft report prepared for the Administrative Conference of the United States entitled “Drafting Regulatory Preambles.”  Described as an exploration of “best practices for drafting regulatory preambles in light of recent developments in judicial review…

Americans for Prosperity (“AFP”) has published an article by AFP Foundation Senior Policy Counsel Ryan Mulvey that re-tells the story of Loper Bright with a focus on the plaintiff-fishermen, who stood up to what they took to be an egregious instance of government overreach.  The article is part of AFP’s “One Small Step” series, which…

Updates to the federal government’s official guide to interpretations of the Constitution—maintained by the Librarian of Congress and popularly known as “Constitution Annotated”—were published earlier this week to reflect the impact of the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo on the proper understanding of the Vesting Clause in Article I.  The changes…