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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).
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The Federalist Society is hosting a webinar on the “Nondelegation and the Limits of Agency Authority after Consumers’ Research and Loper Bright” next Friday, January 23 at 2:00 PM ET. Details and registration link below:
The panel will discuss the questions left open—or raised—by the Supreme Court’s decisions in FCC v. Consumers’ Research and Loper Bright Enterprises v. Raimondo, about the proper approach to statutory construction and the role that the nondelegation doctrine should play as a background principle in statutory analysis in cases where an agency has claimed broad authority to weigh competing public values when promulgating legislative rules.
Featuring:
- Prof. Jonathan Adler, Tazewell Taylor Professor of Law and William H. Cabell Research Professor, William & Mary Law School; Senior Fellow, Property and Environment Research Center
- Prof. Ilan Wurman, Julius E. Davis Professor of Law, University of Minnesota Law School
- (Moderator) Adam White, Senior Fellow, American Enterprise Institute; Director, Scalia Law’s C. Boyden Gray Center for the Study of the Administrative State
The Federalist Society is hosting a webinar on the “Loper Bright Fallout for SEC Rulemaking” next Tuesday, January 20 at 12:00 PM ET. Details and registration link below:
In an unprecedented action, the SEC in July dismissed with prejudice a pending enforcement case concerning an alleged violation of a rule promulgated under the Investment Company Act of 1940 (ICA). In 2023, the SEC had charged the defendants (a mutual fund, its investment advisor, and independent directors of the fund) with violating its 2016 “liquidity rule,” which limits the percentage of assets investment companies may hold in “illiquid” investments. The independent directors argued that the ICA did not authorize the SEC to make rules concerning fund liquidity and that its decision to do so based on a protection of investors rationale was owed no deference under the 2024 Supreme Court decision in Loper Bright.
The district court ordered supplemental briefing on Loper Bright implications, but before the SEC filed its supplemental response, it dismissed the case against all defendants, citing “policy reasons”, without more explanation.
Our panelists will discuss the numerous legal and policy issues and questions raised by this sequence of events.
Featuring:
(Moderator) Michael Piwowar, Executive Vice President, Milken Institute Finance
Jan Folena, Partner and Co-Chair of Securities & Regulatory Enforcement, Stradley Ronon
Margaret Little, Senior Litigation Counsel, New Civil Liberties Alliance
Tomorrow, the Supreme Court will consider for the first time two cert petitions at its conference presenting Loper Bright-related questions. A third, more tangentially Loper Bright-related petition will return as a relist.
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Earlier this month, a group of Republican U.S. Senators, led by Ted Cruz (Texas) and Mike Lee (Utah), sent a letter to the Environmental Protection Agency (“EPA”) discouraging the agency from moving forward with a proposal to reallocate exempted renewable volume obligations pursuant to the agency’s Renewal Fuel Standard program. Loper Bright figured prominently in the coalition letter and, specifically, the legislators’ argument that Congress’s failure to authorize such reallocation by statute deprived the EPA of authority to do so in the face of statutory silence.
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AFP Foundation’s Michael Pepson mentioned Lesko v. United States as a case to watch for understanding how Loper Bright might guide restraint over agency authority without Chevron deference earlier this year. At the time, the Federal Circuit had ordered en banc review to reconsider whether the Court of Federal Claims correctly upheld the Office of Personnel Management’s (“OPM”) overtime regulations. Last week, the full Circuit ruled in favor of OPM after applying the new Loper Bright paradigm for judicial review.
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When the Supreme Court decided Loper Bright Enterprises v. Raimondo, overturning Chevron deference, it clarified the principle that federal agencies cannot extend their authority beyond what has been clearly authorized by Congress. In declaring that “statutes . . . have a single, best meaning,” the Court made clear that agencies must follow the law as written and not their policy preferences. Over the past year, this clarity has prompted many agencies to scrutinize long-standing policies, even those created before Chevron deference. The Trump Administration has even made such reevaluation a central pillar of its deregulatory agenda, as reflected in Executive Order 14219 and guidance from the Office of Management and Budget. The Department of Justice’s (“DOJ”) new Title VI rule, which eliminates disparate-impact liability, is just one of the clearest and most recent examples of the real impact Loper Bright is having on the American regulatory space.
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Jace Lington and Bennett Nuss discuss the implications of the Loper Bright decision on administrative law with guest Eli Nachmany. Eli’s forthcoming paper, “Deference Undisturbed,” examines the effects of the Loper Bright decision on prior cases decided under the Chevron framework. They discuss the open legal questions that remain after the end of Chevron, the role of Congress in shaping administrative law, and the future of various deference doctrines.
Separation of Powers Institute Professor Chad Squitieri hosted Professor Natalie Schmidt for a fascinating discussion about her article on the distinction between law and fact. The podcast covers formalism, functionalism, realism, agencies’ role in factfinding, and why the distinction between law and fact is critical following the Supreme Court’s decision in Loper Bright.
Listen to the Episode:
AFP Foundation Files Amicus Brief in Relentless v. Department of Commerce
Americans for Prosperity Foundation (“AFPF”) has filed an amicus brief in Relentless v. Department of Commerce—the companion case to the historic Loper Bright Enterprises v. Raimondo. With Loper Bright held in abeyance on remand, the outcome in Relentless may have significant implications for proper implementation of the Magnuson-Stevens Act (“MSA”), as well as the understanding of de novo review in the post-Chevron administrative‑law landscape.
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