Loper Bright
Supreme Court Declines To Address Lurking Loper Bright Question In Urias-Orellana v. Bondi
On Wednesday, the Supreme Court issued a unanimous decision authored by Justice Jackson in Urias-Orellana v. Bondi, a dispute over the standard of review Courts of Appeals should apply to Board of Immigration decisions on whether a set of undisputed facts rises to the level of “persecution” under the Immigration and Nationality Act in the…
Read MoreFifth Circuit Cites Loper Bright to Strike Down FCC Telemarketing Regulation
The U.S. Court of Appeals for the Fifth Circuit has affirmed a lower court decision striking down a Federal Communications Commission (“FCC”) regulation that interpreted the phrase “prior express consent” in the Telephone Consumer Protection Act (“TCPA”) to mean “written” consent, at least when it comes to so-called “telemarketing” calls. That decision, in a case…
Read MoreIsgur Situates Loper Bright in Roberts Court Broader Project
Advisory Opinions host Sarah Isgur has an essay at The Atlantic where she discusses the Supreme Court’s project “to shrink the presidency back to size and force 535 people to figure out a lasting solution to our problems, one that everyone can live with.” Although the Court’s recent decision striking down President Trump’s IEEPA tariffs…
Read MoreAmericans for Prosperity Foundation Applauds Trump EPA’s Decision to Repeal Endangerment Finding and Restore Democratic Accountability
Americans for Prosperity Foundation applauds the Trump EPA’s decision to repeal the agency’s 2009 Endangerment Finding—a document the agency has used as a springboard to claim sweeping power under the Clean Air Act to unilaterally set national transportation and energy policy by administrative edict without Congress’s permission. The Endangerment Finding has underpinned a host of…
Read MoreNCLA’s “Unwritten Law” Podcast Explores Amici Arguments in Relentless
The New Civil Liberties Alliance’s podcast, “Unwritten Law,” has released a new episode that explores the arguments presented in seven amicus briefs recently filed at the First Circuit in Relentless v. Department of Commerce, the companion case to Loper Bright Enterprises v. Raimondo. American for Prosperity Foundation’s brief is one of the seven discussed. From…
Read MoreSixth Circuit Highlights Loper Bright’s Impact on Other Deference Regimes
An interesting question after Loper Bright is how the demise of Chevron deference intersects with other deference doctrines that are still on the books, albeit perhaps on life support, such as Auer deference (which allows courts to defer to agency interpretations of their own regulations) and Stinson deference (which teaches that courts should defer to Sentencing Commission commentary on federal sentencing guidelines). In Niblock v. University of Kentucky, a recent Sixth Circuit…
Read MoreAFP Foundation Files Amicus Brief in Relentless v. Department of Commerce
Americans for Prosperity Foundation (“AFPF”) has filed an amicus brief in Relentless v. Department of Commerce—the companion case to the historic Loper Bright Enterprises v. Raimondo. With Loper Bright held in abeyance on remand, the outcome in Relentless may have significant implications for proper implementation of the Magnuson-Stevens Act (“MSA”), as well as the understanding…
Read MoreFederalist Society Event on Limits of Agency Authority
The Federalist Society is hosting a webinar on the “Nondelegation and the Limits of Agency Authority after Consumers’ Research and Loper Bright” next Friday, January 23 at 2:00 PM ET. Details and registration link below:
Read MoreFederalist Society Event on SEC Rulemaking
The Federalist Society is hosting a webinar on the “Loper Bright Fallout for SEC Rulemaking” next Tuesday, January 20 at 12:00 PM ET. Details and registration link below: In an unprecedented action, the SEC in July dismissed with prejudice a pending enforcement case concerning an alleged violation of a rule promulgated under the Investment Company…
Read MoreSupreme Court Conference Preview: Two Loper Bright Cert Petitions, Plus a Loper Relist
Tomorrow, the Supreme Court will consider for the first time two cert petitions at its conference presenting Loper Bright-related questions. A third, more tangentially Loper Bright-related petition will return as a relist. United National Foods is Back The petition in United National Foods, Inc. v. NLRB raises at least two Loper Bright implementation questions: Whether…
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