Clement and Murphy PLLC represented the fishermen before the Supreme Court in Loper Bright.

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In Moctezuma-Reyes v. Garland the Sixth Circuit was tasked with interpreting the meaning of the statutory phrase “exceptional and extremely unusual hardship” in assessing Mr. Moctezuma-Reyes’s petition for review of an immigration judge’s denial of his application for cancellation of his removal from the United States, which the Board of Immigration affirmed.

The Court expressed sympathy for Mr. Moctezuma-Reyes’s circumstances, describing him as “a devout Catholic, a loving father as well as husband, and a godfather to six children,” noting that the immigration judge described him as “‘a good person, a good father, a good husband.’” The Court nonetheless found that his removal would not cause “exceptional and extremely unusual hardship” and denied his petition because the law, as written, required that result. After all, courts are not supposed to make policy choices—that is Congress’s job. 

But whatever one thinks about that outcome as a policy matter, what makes this decision notable is the Sixth Circuit’s thoughtful implementation of Loper Bright’s core teaching:  “[c]ourts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority” and may no longer “defer to an agency interpretation of the law simply because a statute is ambiguous.” 

As the panel opinion, authored by Judge Thapar, noted: “[E]ven with Loper Bright now on the books, one might claim that we should nevertheless defer to the BIA on the legal meaning of ‘exceptional and extremely unusual hardship.’ Why? Because the Supreme Court has instructed us that occasionally the best reading of a particular statute will reveal that Congress expressly and explicitly delegated discretion to the agency—and that we must defer to the agency’s exercise of its discretion.” But as the panel opinion explained, “express language conferring discretion on the agency is critical: If broad language alone triggered deference, we’d unwittingly return to construing less than precise words as implicit delegations to the agency that warrant deference. That can’t be right. The case that declared ‘Chevron is overruled’ didn’t quietly reinstitute it.” And as the panel opinion observed, while “there are rare circumstances where a court may have to defer to an agency,” courts “must be sure. The actual delegation of authority to the agency must be clear: imprecise wording alone won’t cut it. Chevron is no more.” This means that before deferring to an agency’s judgment on a statute’s meaning, a court “must find that the statute expressly confers discretion on the agency.” In other words, under Loper Bright, onlystatutes with “express language conferring discretion on the agency to interpret a broad standard” require courts to undertake a three-step inquiry to determine whether a form of deference is warranted.

Applying those principles, the panel opinion concluded that, although broadly worded, the statute’s “‘exceptional and extremely unusual hardship’ standard does not qualify for this sort of deference,” because it was not coupled with “language vesting the BIA with discretion to determine the meaning of” that phrase. As the panel observed, “the actual statutes that Loper Bright cited as examples of delegations that may call for deference don’t only have broad language. They pair that language with words that expressly empower the agency to exercise judgment.” That analysis is faithful to and properly implements Loper Bright and should be followed by other courts: subject to constitutional limits, only express—as opposed to implicit—delegations of interpretive power to agencies should be eligible for the form of deference contemplated by Loper Bright.

Judge Stranch concurred in the judgment, arguing that “Loper Bright does not give this court the power or the responsibility to define ‘exceptional and extremely unusual hardship’ from new cloth—it instead teaches that reinterpreting a statute should be undertaken only with great caution.” The panel opinion ably countered: “But Loper Bright instructed us to carry out our judicial duty to say what the law is, even when agencies are involved. That’s what we’ve done here.” Let us hope other courts follow the panel opinion’s lead.

The Foundation for American Innovation is hosting a panel discussion and reception about how the Loper Bright case shifts power back to Congress.

The event is in Washington, DC on Wednesday, February 12.

​The Supreme Court’s overturning of Chevron deference last year dramatically changed the relationship between the legislative and executive branches. After four decades of Supreme Court precedent holding that courts should broadly defer to agencies in their interpretation of statutes, the landmark Loper Bright case has shifted responsibility back to Congress.

​But is Congress up to the task of executing its renewed Article I responsibilities? What capabilities and institutional reforms would better equip Congress for its new role?

​To explore these questions, the Foundation for American Innovation invites you to a panel discussion and reception in Washington, DC, on Wednesday, February 12, featuring experts on Congress and the administrative state.

​The panel will build upon a recent symposium published by the Foundation for American Innovation and the C. Boyden Gray Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School. Congress after Chevron: Legislative Responses to Changing Deference Doctrines features new papers on Congress’s post-Chevron challenges and opportunities.

Information and Registration.

No More Deference: Sixth Circuit Relies on Loper Bright to Strike Down Net Neutrality Rules

Congressional Research Service, Feb. 3, 2025

On January 2, 2025, the U.S. Court of Appeals for the Sixth Circuit (Sixth Circuit) vacated the Federal Communications Commission’s (FCC’s) most recent net neutrality rules. The court held that, under the Communications Act of 1934, as amended (the Act), the FCC must treat broadband internet access service (BIAS) as a lightly regulated “information service” instead of a highly regulated telecommunications service.” The court similarly held that BIAS delivered via mobile phones (mobile BIAS) is a lightly regulated “private mobile service” under the Act instead of a highly regulated “commercial mobile service.” Because the FCC’s authority over BIAS and mobile BIAS is minimal, the court struck down the FCC’s net neutrality rules.

The decision marks the first time that a court decided for itself—without deferring to the FCC—how BIAS should be treated under the Act. In prior cases, courts relied on the Chevron doctrine to defer to the FCC’s reasonable interpretations when faced with ambiguous statutory language. The era of Chevron deference ended, however, with the U.S. Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, leaving to the courts the task of definitively interpreting the meaning of statutes enforced by a federal agency.

The Sixth Circuit’s decision also addressed a lingering question: To what extent are lower courts bound by prior cases decided under the Chevron doctrine? In a 2005 decision, NCTA v. Brand X Internet Services, the Supreme Court had applied Chevron to uphold a prior FCC order classifying BIAS as an information service. As a result, litigants debated whether the Sixth Circuit was bound by this decision when interpreting the same statutory terms or whether it could approach the statutory interpretation question with a blank slate. The Sixth Circuit held it had a blank slate. It was not bound by Brand X because, while the interpretive question was the same, the particular agency order was new.

Carrie Severino on Chevron and Net Neutrality in National Review:

“Net neutrality” rules, which restrict internet service providers’ ability to manage users’ internet access—by, for instance, changing speeds or blocking third-party connections based on content, contractual obligations, or other factors—were for many years a point of contention. The alarmist Left long insisted that such regulation from the Federal Communications Commission was needed to avert a panoply of predatory conduct. Experience has shown that panic to be baseless.

And the legal dimension of the issue carries its own lessons. The odyssey of net neutrality directives, the most recent of which the Sixth Circuit held to be unlawful last month, now stands as a benchmark in the courts’ recent repudiation of the arbitrary and undemocratic regime of Chevron deference.

Mitch McConnell discusses Loper on 60 Minutes:

Recent Supreme Court decisions have addressed the power of federal agencies, including Loper Bright v. Raimondo, which was decided last year. With Loper Bright, a majority of justices rejected the established principle known as the Chevron deference, which held that courts should typically give weight to government agencies when interpreting the laws they enforce.

“This new Supreme Court reversed that,” McConnell said. “And that’s a message to Congress, that if you want us to do something, you better spell it out. And it’s also a message to the private sector, that if you think this agency doesn’t have the authority to do this, sue them and you might have a chance at winning.”

During a Senate Budget Committee nomination hearing yesterday, Senator Chuck Grassley (R-Iowa) asked Russell Vought, President Trump’s nominee to be the Director of the Office of Management and Budget, to give his view on the Loper Bright decision:

“I’d like your view on… the recent Supreme Court decision overturning the Chevron Doctrine… how that can help you to stop our government from being overregulated, and stop bureaucrats from overreaching and using statues that may be liberally interpreted.”

“So, you’ll be watching that regulatory process to make sure that Loper is followed?”

Chevron’s Swan Song: Loper Bright and the New Era of Judicial Oversight of Agency Actions
By Adam, Feldman, Legalytics, Jan. 17. 2025

From 1984 to 2024, judges examining agency interpretations of statutory language followed the following guidelines: “When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: ‘Our Constitution vests such responsibilities in the political branches.’ TVA v. Hill, 437 U. S. 153, 195 (1978).” These are Justice Stevens’ words from the 1984 Supreme Court decision in Chevron v. NRDC. In 2024’s Loper Bright v. Raimondo, Chief Justice Roberts wrote for the Court’s majority: “Chevron was a judicial invention that required judges to disregard their statutory duties. And the only way to ‘ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion,’ Vasquez v. Hillery, 474 U. S. 254, 265 (1986), is for us to leave Chevron behind.”

This overhaul drastically changed the legal landscape surrounding deference to agency interpretations of statutes and has left many question marks for attorneys and judges in this area on how to navigate in this new terrain. This article examines over 300 opinions from all types of courts, mostly federal with the exception of a few state court cases, that include citations to Loper Bright to try and get a sense of how courts will treat challenges to agency interpretations based on this recent shift in precedent.

Read more.

In the Yale Journal on Regulation Notice and Comment blog, Adam White calls for papers for presentation in summer 2025 at Antonin Scalia Law School:

Judges, lawyers, legislators and academics will grapple with these questions for many years to come—just as they did for decades after Chevron itself. Legal scholarship, at its best, exists to inform and improve such deliberations, the C. Boyden Gray Center for the Study of the Administrative State is inviting papers on “Textualism and Administration After Loper Bright,” to be presented and discussed at a research roundtable at the Antonin Scalia Law School in Summer 2025.

…

To support scholarly research and discussion on this important subject, we offer authors a substantial honorarium for their draft, and after the roundtable we will post the authors’ subsequent drafts to the Gray Center’s Working Papers Series.

If you would like to submit a paper for this roundtable, then please email a short description of your project to the Gray Center’s executive director, Adam White (awhite36@gmu.edu), by February 10, 2025. We will schedule the roundtable in consultation with the authors.

Senators Rand Paul (R-KY) and Eric Schmitt (R-MO) reintroduced the Separation of Powers Restoration Act (SOPRA).

Although the Supreme Court has overturned Chevron deference, SOPRA will codify the principle that courts must decide cases based on their legal merits without giving deference to prior agency decisions or interpretations, ensuring that all forms of deference doctrines are curtailed. 

Rep. Mark Green introduced the Sunset Chevron Act:

This bill requires the Government Accountability Office (GAO) to compile a list of executive agency actions that have been upheld by Chevron deference. These actions begin sunsetting every 30 days on a rolling basis unless they are upheld by Congressional action. Agency rules will sunset in reverse chronological order so that the newest rules sunset first. This legislation also makes an exception to the 60 legislative day restriction on filing a Congressional Review Act (CRA) for rules upheld by the Chevron doctrine, giving lawmakers more time to challenge executive agency rules and regulations, even those that are decades old.

Read the text of the bill here.