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 serious engagement.

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. Court of Appeals for the Fifth Circuit.  Academic investigation of those impacts is vital for appreciating the ways in which Loper Bright will influence the direction of federal administrative law, as well as the executive branch’s reaction in setting its regulatory agenda and Congress’s possible re-engagement with its vested legislative authority and design of delegations to regulatory agencies.

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 another judicial-deference doctrine,” but more importantly “positions Beaird as a test case for whether Loper Bright’s underlying reasoning—that judges must provide their independent judgement about the best meaning of the law—extends beyond the administrative-law context.”

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, the agency suggested the Secretary of Commerce could initiate a direct amendment to “rescind these measures.”

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 “point to text that expressly vests EPA with authority to render conclusive pronouncements on the meaning of FIFRA’s misbranding provisions and their application to particular pesticides.”  In other words, unless Congress had expressly given the EPA exclusive jurisdiction to regulate herbicides like Monsanto’s weedkiller, Roundup, there could be no preemption of Mr. Durnell’s failure-to-warn claim under state labeling laws. 

The past two months have seen Loper Bright play an important role in the adjudication of several appeals across multiple circuit courts.  Here are the instances where Loper Bright, and the end of Chevron deference, was particularly notable.

The Yale Journal on Regulation’s blog, Notice & Comment, has published the second half of a two-part series exploring the impact of Loper Bright on the two major political parties and their members in Congress.   

The first half, published last month, explored how Chevron deference possibly served a uniting function for the GOP, and that its elimination by the Supreme Court now leaves an “open question whether business-minded conservatives and antistatist conservatives can maintain their previously productive alliance.”   

The Supreme Court will hear oral argument next week in Monsanto Company v. Durnell. The question presented is “[w]hether the Federal Insecticide, Fungicide, and Rodenticide Act [(“FIFRA”)] preempts a label-based failure-to warn claim where EPA has not required the warning.” Neither party cited Loper Bright in their cert-stage briefing. Nor did the Missouri state-court decisions below, which is perhaps unsurprising. But as Professor Josh Blackman flagged in Reason today, the respondent’s merits brief does cite Loper Bright in arguing against preemption.