Loper Bright

Cass Sunstein’s latest piece on Loper Bright was published in the Duke Law Journal: Our Marbury: Loper Bright and the Administrative State. Here’s the abstract: Loper Bright, overruling Chevron, is unmistakably part of administrative law’s current “Grand Narrative,” which sees contemporary administrative agencies with suspicion, as a product of successive breaches of Article I, II,…

Michael Rapoport at Bloomberg Tax has a piece on how “Congressional tax writers are taking steps to head off any future legal challenges to their new tax bill, but it’s a delicate balancing act.” The bill’s directives for Treasury to act are “more deliberative and detailed” than usual, and that added specificity “may be aimed…

Yesterday, Loper Bright took center stage in an oral argument before the District of Columbia Court of Appeals: A three-judge panel of Washington, D.C.’s high court at oral arguments Wednesday investigated how the US Supreme Court’s new agency deference standard applies to courts in the district as part of a dispute over a $5.9 million…

Lawrence J. Spiwak, President of the Phoenix Center for Advanced Legal & Economic Public Policy Studies, writes on the FedSoc Blog that the “FCC still can’t interpret Section 230:” Which brings me to proponents of the FCC’s power to interpret Section 230. About a month after I wrote my original post, Seth Cooper of the…

Bloomberg Law’s UnCommon Law podcast continues its series on the “story behind the fishing industry’s Chevron doctrine challenge:” This season on UnCommon Law, we’re exploring the limits of agency power. To what extent are federal agencies authorized to create and implement regulations that aren’t explicitly mandated by Congress? And what happens when an agency goes too far?…

Joseph A. D’Angelo from the Florida International University College of Law published “Chevron Solutions: Restoring the Separation of Powers in a Post-Chevron Landscape” in the University of Florida’s Journal of Law and Public Policy: The erosion of congressional authority in the face of expanding executive power, particularly through administrative agencies, is of critical importance. A…

In U.S. v. Bricker, the Sixth Circuit grappled with whether the Sentencing Commission could use a policy statement to expand the scope of the federal compassionate release statute, which authorizes early release for “extraordinary and compelling reasons,” to cover nonretroactive changes in sentencing law, when the en banc Sixth Circuit previously reached the opposite conclusion.…

Finn Dobkin, a Senior Policy Analyst at the George Washington University Regulatory Studies Center, published a working paper titled “Uncertain Authority,” examining recent legal and institutional changes surrounding the Council on Environmental Quality (CEQ)’s authority to issue binding National Environmental Policy Act (NEPA) rules. In Loper Bright Enterprises v. Raimondo, the Supreme Court ruled that…

Eli Nachmany has joined the discussion on the Yale Notice & Comment blog about the interaction between the APA’s good cause exception, Loper Bright, and the Trump Administration’s efforts to root out existing unlawful regulations: Cary Coglianese and Daniel Walters recently published an interesting Notice & Comment post about the President’s memorandum, suggesting that the move shows…

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…