In a recent post for the Yale Journal on Regulation’s “Notice & Comment” blog, law professor Daniel Deacon has previewed a draft report prepared for the Administrative Conference of the United States entitled “Drafting Regulatory Preambles.”  Described as an exploration of “best practices for drafting regulatory preambles in light of recent developments in judicial review of agency action,” the paper proposes to provide insight into how the Supreme Court’s overruling of Chevron deference in Loper Bright Enterprises v. Raimondo has impacted behavior among lawyers and policy experts in the federal bureaucracy.

Americans for Prosperity (“AFP”) has published an article by AFP Foundation Senior Policy Counsel Ryan Mulvey that re-tells the story of Loper Bright with a focus on the plaintiff-fishermen, who stood up to what they took to be an egregious instance of government overreach.  The article is part of AFP’s “One Small Step” series, which is marking America’s semiquincentennial by exploring how the country’s founding principles apply to policy change movements.

Updates to the federal government’s official guide to interpretations of the Constitution—maintained by the Librarian of Congress and popularly known as “Constitution Annotated”—were published earlier this week to reflect the impact of the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo on the proper understanding of the Vesting Clause in Article I.  The changes can be found in articles concerning agency discretion and judicial deference, as well as the Major Questions Doctrine and other canons of statutory construction.

The guide’s explanation of the limits of agency discretion emphasized that, in the absence of Congress’s express delegation of interpretative power, courts should no longer defer to an administrative agency’s interpretation of a statute so long as it is “reasonable.”  Judges must instead provide authoritative constructions of alleged textual ambiguities.

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 called Bradford v. Sovereign Pest Control, relied on Loper Bright’s straightforward proposition that “[c]ourts interpret statutes, no matter the context, based on the traditional tools of statutory construction,” and without deference to an agency’s reading of the law.

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 burdensome and expensive EPA regulations impacting the entire national economy and the daily lives of Americans, including the price we pay for basic consumer goods. By repealing it, President Trump, Administrator Zeldin, and EPA have taken yet another bold step to unleash prosperity, restore American energy dominance, and lower costs. As the Washington Post Editorial Board said, supporting the decision, “It’s about time.” This historic deregulatory action will make buying a new car more affordable and save over a trillion dollars in costs.

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).