Loper Bright
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…
Read MoreJohn Chisholm Recounts Loper Bright After Two Years
Santa Fe Institute and Foundation for Economic Education trustee John Chisholm in the Wall Street Journal revisiting Justice Kagan’s worry that ending Chevron deference would “cause a massive shock to the legal system.” What about Justice Kagan’s warning? Two years on, no “massive shock” has materialized. Agencies still prevail in most challenges. Empirical studies put…
Read MoreA Healthy Constitutional Squabble
Law & Liberty published an essay by AFPF’s James Valvo & Ryan Mulvey on how a recent dustup over the constitutionality of the Presidential Records Act provides an opportunity to strengthen antifragile government. The essay opens: The Presidential Records Act (PRA) has lately been a source of controversy. The Department of Justice’s Office of Legal…
Read MoreEPA 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.
Read MoreSCOTUS’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…
Read MoreC. Boyden Grey Center Podcast on Judging After Loper Bright
In this final panel from the Gray Center’s October conference, moderator Aaron Nielsen (UT Austin) speaks with Judge Naomi Rao (D.C. Circuit) and Judge Steven Menashi (Second Circuit) about their role as judges after Loper Bright ended Chevron deference.
Read MoreLoper 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…
Read MoreCommentators 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…
Read MoreSEC Suddenly Abandons Gag Rule After Decades of Silencing Respondents
The Securities and Exchange Commission (“SEC”) has rescinded its long-standing Rule 202.5(3) that requires respondents settling allegations with the agency to agree to never “publicly deny the allegations in the complaint or administrative order” or risk having their settled charges reopened.
Read MoreProfessor 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.
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