Loper Bright

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 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.

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…

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.…

Last month, the Supreme Court granted certiorari in Beaird v. United States, indicating it would consider whether Stinson v. United States “still correctly states the rule for the deference that courts must give the commentary to the Sentencing Guidelines.”  As I explained at the time, this move not only “opens the door for reconsideration of…

As reported by Cause of Action Institute, which represents the fishermen in Loper Bright Enterprises v. Raimondo, the head of NOAA Fisheries sent a letter to the New England Fishery Management Council last week directing it to “revise and potentially withdraw” industry-funded monitoring requirements for the Atlantic herring fishery.  In the absence of council action,…

As Professor Jonathan Adler covered in Reason, the Solicitor General has declined to defend the D.C. Circuit’s split-panel decision in American Gas Association v. Department of Energy in the U.S. Supreme Court.  

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…