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.

By Ryan P. Mulvey & Michael Pepson 

The Sixth Circuit’s recent decision in Department of Labor v. Americare Healthcare Services is a useful indicator of how courts operationalize Loper Bright when a statute contains an express delegation of authority to an agency.  The case also spotlights related questions about the scope of statutory stare decisis for Chevron-era precedents, and the status of broad “housekeeping” statutes that agencies may claim confer legislative rulemaking authority. 

The Supreme Court has granted the petition for writ of certiorari in Beaird v. United States to review whether Stinson v. United States “still correctly states the rule for the deference that courts must give the commentary to the Sentencing Guidelines.”  This development not only opens the door for reconsideration of another judicial-deference doctrine in the wake of Loper Bright, but it positions Beaird as a test case for whether Loper Bright’s underlying reasoning—that judges must provide their independent judgment about the best meaning of the law—extends beyond the administrative-law context.

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.