Loper Bright

The Departments of the Interior and Commerce have proposed to rescind an Endangered Species Act rule defining “harm” because it “do[es] not accord with the single, best meaning of the statutory text” and instead they will “rest on the statutory definition of ‘take.’” This proposal is in line with a White House directive to remedy…

Cary Coglianese & Daniel E. Walters write in the Yale Journal on Regulation’s Notice & Comment blog: With the ink barely dry in Loper Bright, we are beginning to see just how unsettled, and how unpredictable, the administrative governance game can be in a post-Loper Bright world. With a new memorandum, “Directing the Repeal of Unlawful Regulations,”…

Earlier this week, on April 9, 2025, President Trump issued a new memorandum entitled “Directing the Repeal of Unlawful Regulations.”  The memo, which builds on directions set out in Executive Order 14219 (Feb. 19, 2025), instructs the heads of all executive branch agencies to prepare for repealing “facially unlawful regulations” after April 20, 2025.  Agencies…

AFP Foundation’s Ryan Mulvey published an article in the Yale Journal on Regulation’s Notice & Comment blog on how “Loper Bright will impact FOIA jurisprudence, specifically with respect to judicial review of agency use of Exemption 3.” “Chevron is overruled.”  With these historic words, Loper Bright eliminated Chevron deference.  The resolution of all legal questions—including the meaning of withholding statutes used…

Liberty University School of Law’s Eric Bolinder published a new paper on “Litigating After Loper.” Bolinder previously represented the fishermen in Loper while at Cause of Action Institute and argued the case before the D.C. Circuit. Abstract This article arrives at a critical juncture in Administrative Law and comprehensively answers two burning questions about Loper…

Pacific Legal Foundation’s Will Yeatman and Charles Yates write in Notice & Comment about how Bondi v. VanDerStok “has the potential to dent the arc of administrative law. As Justice Alito observed in his dissent, the case could end up being ‘a huge boon for the administrative state.’” Following Loper Bright, the Justice Department started probing…

Yesterday, in American Clinical Laboratory Ass’n v. FDA, a Texas district court properly relied on Loper Bright  to reject the FDA’s attempted ultra vires expansion of its jurisdiction under the Food, Drug, and Cosmetic Act (“FDCA”) to regulate, for the first time, laboratory testing services as manufactured “devices.”  Ever since City of Arlington, court deference to…

The U.S. Court of Appeals for the D.C. Circuit has denied the federal government’s emergency request to stay a pair of temporary restraining orders in J.G.G. v. Trump, a high-profile case challenging the Trump Administration’s invocation of the Alien Enemies Act of 1798 (“AEA”).  Somewhat unexpectedly, the Supreme Court’s decision in Loper Bright Enterprises v.…

Yesterday, the Bipartisan Policy Center hosted a launch event on its report, “Legislating After Loper: Practical Solutions for a Post-Chevron Congress,” written by members of its Working Group on Congress, Courts, and Administrative Law. The Working Group is co-chaired by Former Senators Heidi Heitkamp (D-ND) and Mel Martinez (R-FL) along with eight working group members. …

The Gun Control Act of 1968 (GCA) defines “firearm” to include “(A) any weapon . . . which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; [and] (B) the frame or receiver of any such weapon.” 18 U. S. C. §921(a)(3). Those engaged…