Loper Bright

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…

Last fall, Lesko v. United States—an appeal of a decision from the Court of Federal Claims about an Office of Personnel Management (“OPM”) regulation—was argued before a panel of the U.S. Court of Appeals for the Federal Circuit.  This week, however, following a sua sponte poll of the Circuit’s full bench, the court ordered the…

Loper Bright has reached the Court of Federal Claims for review of bid protests under the Administrative Procedures Act (APA).  QED GROUP LLC v. USA, No. 1:2024cv01961 – Document 47 (Fed. Cl. 2025) In a dispute over whether a prospective bidder for a broad pre-approved vendor list could be excluded because it was subject to…

The event will discuss how the Loper and other court decisions “pose challenges for Congress in how it legislates and directs regulatory agencies. They also underscore existing concerns over congressional capacity, internal processes, and the legislative branch’s ability to tackle complex policy challenges. Last year, BPC established the Working Group on Congress, Courts, and Administrative Law to…

The EPA recently announced that it will formally reconsider its 2009 Endangerment Finding in which it deemed carbon dioxide, methane, and four other gases as “air pollutants,” as well as “all of its prior regulations and actions that rely on the Endangerment Finding.” That is a big deal because the Endangerment Finding has been used to justify…

Professors Kristin Hickman and Amy Wildermuth have a new article on Loper’s two buckets: “independent judgment for mere statutory interpretation and reasoned decisionmaking for exercises of delegated policymaking discretion.” Abstract By overturning Chevron, the Supreme Court’s Loper Bright decision clearly changed the way in which courts must approach agency actions interpreting statutes. But Loper Bright stopped well short of declaring…