TechFreedom’s Corbin Barthold on the FedSoc Blog explores whether the Trump Administration has “Good Cause” to skip notice and comment in response to the Administration’s executive order directing agencies to repeal “unlawful, unnecessary, and onerous regulations:”

New precedents often raise as many questions as they answer. Take the first case on the executive order’s list: Loper Bright v. Raimondo (2024), which scrapped Chevron deference. Now judges must apply a law’s best reading, rather than any plausible reading an agency might offer. The administration seems to think that, with Loper Bright on the books, agencies must now repeal, without public input, any rule that does not reflect the one correct interpretation of a statute. But working out that interpretation is precisely what the notice-and-comment process is for. And in any event, Loper Bright said that it did “not call into question prior cases that relied on the Chevron framework.” If the Court exercised such restraint, by what authority may agencies bull ahead? Might the Court conclude that past agency reliance on Chevron, like past court reliance on Chevron, remains lawful? Repealing rules without notice and comment doesn’t resolve these uncertainties—it assumes them away. The APA does not grant agencies such conveniences.

It is strange to treat Loper Bright as an agency-empowering decision. “Whatever respect an Executive Branch interpretation” may deserve, it says, quoting a case from 1840, a judge is not “bound to adopt the construction given by the head of a department.” The APA, too, makes clear that “the reviewing court shall decide all relevant questions of law.” But if an agency’s understanding of the law receives no deference, an agency should not be declaring, on its own authority, which of its regulations are so unlawful as to open up the “good cause” shortcut. The proper course is to go through notice and comment, issue the repeal, then let the courts make the final call.

Cass Sunstein’s latest piece on Loper Bright was published in the Duke Law Journal: Our Marbury: Loper Bright and the Administrative State. Here’s the abstract:

Loper Bright, overruling Chevron, is unmistakably part of administrative law’s current “Grand Narrative,” which sees contemporary administrative agencies with suspicion, as a product of successive breaches of Article I, II, and III of the Constitution. The decision should be seen as our Marbury v. Madison—an effort to insist that it is emphatically the province and duty of the judicial department to say what the law is. But will the decision produce large changes? The answer depends, of course, on the meaning of both Chevron and Loper Bright. Under Chevron, courts hardly gave a blank check to agencies; on the contrary, they frequently invalidated agency interpretations of law. How much will invalidation rates rise? We cannot give a confident answer, in part (1) because Loper Bright retains Skidmore (which calls for respectful attention to agency interpretations); in part (2) because Loper Bright recognizes that Congress sometimes explicitly or implicitly delegates interpretive authority to agencies; and in part (3) because (and these must be counted as some of its effects) Loper Bright will (a) increase litigants’ incentive to attack agency interpretations and (b) reduce agencies’ incentive to adopt adventurous interpretations (though agencies may have other incentives to do that). Any numerical projection would be hazardous, but Loper Bright gives a clear signal, a green light to federal courts where Chevron gave a yellow light—which means that it is reasonable to predict a nontrivial increase in judicial invalidations (other things being equal). It is also safe to predict that in the near future, the combination of Loper Bright with increasing judicial skepticism about the administrative state will result in a nontrivial increase in invalidation of regulations designed to protect health, safety, and the environment. In the near future, Loper Bright will also lead to a significant increase in ideological divisions in the lower courts. Still, Loper Bright is our Marbury, and will, sooner rather than later, be seen as such in mounting conflicts between agencies and courts.

Michael Rapoport at Bloomberg Tax has a piece on how “Congressional tax writers are taking steps to head off any future legal challenges to their new tax bill, but it’s a delicate balancing act.”

The bill’s directives for Treasury to act are “more deliberative and detailed” than usual, and that added specificity “may be aimed at reinforcing the Treasury’s authority to issue regulations in anticipation of potential challenges” after Loper Bright, said Jennifer Breen, a partner at Morgan Lewis & Bockius LLP.

The ruling was “a wake-up call to Congress,” Bodoh said. “Loper Bright has caused a re-focus on regulatory validity. I don’t think Congress is leaving any of this to chance.”

The tax bill’s moves suggest “an evolution in the relationship between Congress and the IRS,” Breen said. Congress isn’t just telling Treasury to act, it’s also directing Treasury exactly what to do in many cases, “leaving less to agency discretion than ever before.”

Yesterday, Loper Bright took center stage in an oral argument before the District of Columbia Court of Appeals:

A three-judge panel of Washington, D.C.’s high court at oral arguments Wednesday investigated how the US Supreme Court’s new agency deference standard applies to courts in the district as part of a dispute over a $5.9 million transfer tax refund.

The district government issued an emergency “clarification” amendment to codify deference to its own agencies after the Supreme Court gutted the Chevron doctrine in 2023’s Loper Bright Enterprises v. Raimondo. The doctrine required courts to defer to agency interpretations of ambiguous laws.

The Court specifically asked for oral argument to focus on how Loper would apply:

In their supplemental briefs, the parties discuss the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), and its implications for the doctrine of deference to administrative agencies. After the supplemental briefs were filed, the D.C. Council enacted the Review of Agency Action Clarification Emergency Amendment Act (D.C. Act 25-634). The emergency act has expired, but a temporary act (D.C. Act 25-664) is now in effect through October 2025. The parties should be prepared at oral argument to discuss the temporary act.

No. 22-TX-0820 – LHL REALTY COMPANY DC, LLC, ET AL. v. DISTRICT OF COLUMBIA

Lawrence J. Spiwak, President of the Phoenix Center for Advanced Legal & Economic Public Policy Studies, writes on the FedSoc Blog that the “FCC still can’t interpret Section 230:”

Which brings me to proponents of the FCC’s power to interpret Section 230.

About a month after I wrote my original post, Seth Cooper of the Free State Foundation wrote a response entitled Power to Persuade: The FCC’s Authority to Interpret Section 230 Post-Loper Bright. While Mr. Cooper agreed with me that Loper Bright eliminated the FCC’s power to make binding authoritative legal interpretations of federal statutes, he argued that Loper Bright nonetheless “recognized that agencies retain the power to interpret the meaning of statutes within their jurisdiction and that, pursuant to Skidmore v. Swift & Co., courts still should consider agency views for their ‘power to persuade, if lacking power to control.’” Thus, argued Mr. Cooper, “a Trump 2.0 FCC possesses the power to issue a policy statement, declaratory ruling, and/or published report offering its interpretation of Section 230’s provisions, such as the meaning of ‘good faith,’ as a source of guidance for courts.”

Skidmore notes that agency “rulings, interpretations and opinions . . . while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” However, Mr. Cooper fails to acknowledge that the “weight [a court should accord to] such a judgment in a particular case” depends on four factors: (1) “the thoroughness evident in [the agency’s] consideration”; (2) “the validity of [the agency’s] reasoning; (3) the agency’s “consistency with earlier and later pronouncements”; and (4) “all those factors which give [the agency] power to persuade, if lacking power to control.”

Skidmore deference is case-dependent, and the FCC has yet to tip its analytical hand in any “policy statement, declaratory ruling, and/or published report,” so it is difficult to prognosticate how a court would view factors (1), (2), and (4).

But the third factor—“consistency with earlier and later pronouncements”—would clearly be problematic for the FCC. The Commission has never attempted to interpret Section 230, so there are no “earlier and later pronouncements” that a reviewing court could compare. The only thing that has been consistent has been the absence of agency action (on a bipartisan basis, no less). Such inaction by the FCC is unsurprising for two obvious and related reasons. First, as noted above, Section 230 does not provide the Commission with any enforcement or other regulatory responsibilities but is instead simply an affirmative defense for civil litigation. Second, and more broadly, digital platforms generally do not engage in any jurisdictional activity covered by the Communications Act. The FCC simply never had any pressing reason to address the question. Thus, any new action by the Commission to interpret Section 230 would be terra nova.

Bloomberg Law’s UnCommon Law podcast continues its series on the “story behind the fishing industry’s Chevron doctrine challenge:”

This season on UnCommon Law, we’re exploring the limits of agency power. To what extent are federal agencies authorized to create and implement regulations that aren’t explicitly mandated by Congress? And what happens when an agency goes too far? In this episode, the story of the fishermen who fought back.

Featuring:

• Wayne Reichle, president of Lund’s Fisheries
• Jeff Kaelin, director of sustainability and government relations at Lund’s Fisheries
• Ryan Mulvey, counsel with the Cause of Action Institute
• Erica Fuller, senior counsel with the Conservation Law Foundation
• Leif Axelsson, captain of the Dyrsten fishing vessel
• Greg Stohr, Supreme Court reporter for Bloomberg News

Joseph A. D’Angelo from the Florida International University College of Law published “Chevron Solutions: Restoring the Separation of Powers in a Post-Chevron Landscape” in the University of Florida’s Journal of Law and Public Policy:

The erosion of congressional authority in the face of expanding executive power, particularly through administrative agencies, is of critical importance. A robust and functional Congress is essential for maintaining the balance of power within the democratic system. This Article delves into the history and impact of Chevron deference. This doctrine granted agencies interpretative authority over ambiguous statutes, highlighting the consequences of Congress’s failure to assert its policy-making responsibilities. This passive legislative stance has allowed the executive branch to dominate national policy decisions, often leading to legal disputes and unstable policies subject to change with each
presidential administration. The Court’s recent decision in Loper Bright v. Raimondo overturned that doctrine but left no clear next steps. This paper posits next steps and advocates for reforms to reclaim Congress’s central role in governance. It presents three potential paths: (1) enacting a clear definition of the limits of congressional delegation by establishing what constitutes generally applicable rules of private conduct; (2) taking no action, instead observing how states manage deference in a post-Chevron context; or (3) adopting structural reforms to ensure Congress effectively checks executive power and upholds constitutional principles

In U.S. v. Bricker, the Sixth Circuit grappled with whether the Sentencing Commission could use a policy statement to expand the scope of the federal compassionate release statute, which authorizes early release for “extraordinary and compelling reasons,” to cover nonretroactive changes in sentencing law, when the en banc Sixth Circuit previously reached the opposite conclusion. In other words, can a federal agency use Brand X to overrule a federal court decision after Loper Bright?  

Finn Dobkin, a Senior Policy Analyst at the George Washington University Regulatory Studies Center, published a working paper titled “Uncertain Authority,” examining recent legal and institutional changes surrounding the Council on Environmental Quality (CEQ)’s authority to issue binding National Environmental Policy Act (NEPA) rules.

In Loper Bright Enterprises v. Raimondo, the Supreme Court ruled that the National Marine Fisheries Service (NMFS) failed to comply with the APA when it promulgated rules requiring commercial fishermen to pay for onboard conservation monitors. As a result, the court overruled decades-long precedent established under Chevron v. Natural Resources Defense Council. Overruling Chevron, Chief Justice Roberts noted that the APA “requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency’s interpretation of the law simply because a statute is ambiguous.” This is important in the context of CEQ’s oversight over NEPA. The text outlining environmental review guidelines is notoriously terse and left agencies with few instructions for what environmental reviews should look like thereby requiring them to exercise independent judgement to interpret the statute.

It is important to note that Loper Bright did, however, affirm Skidmore deference. Under Skidmore, courts may consider an agency’s interpretation based on its persuasive power. This standard relies on several qualitative factors including “[the] thoroughness evident in its consideration…the validity of its reasoning…its consistency with earlier and later pronouncements…and all those factors which give it power to persuade, if lacking power to control.” Unlike Chevron, which required courts to uphold reasonable agency interpretations of ambiguous statutes, Skidmore leaves judges with broad discretion to either adopt or reject an agency’s position.

For CEQ, which now operates without clear statutory rulemaking authority independent of Loper, this creates a precarious legal environment. Courts may uphold CEQ’s interpretations in some cases based on the agency’s technical expertise but reject those same interpretations in other jurisdictions where courts find the reasoning insufficient. For instance, guidance recommending the inclusion of cumulative climate impacts in environmental reviews might be treated as persuasive by one circuit, while another may find it outside the bounds of NEPA’s statutory text. The result is a fragmented landscape in which CEQ’s influence depends heavily on judicial discretion and ideology. As Justice Kagan warned in her dissent in Loper Bright, the shift away from Chevron and toward Skidmore may invite even greater instability:

“The majority’s prescribed way of proceeding is no walk in the park. First, the majority makes clear that what is usually called Skidmore deference continues to apply. Under that decision, agency interpretations ‘constitute a body of experience and informed judgment’ that may be ‘entitled to respect.’ If the majority thinks that the same judges who argue today about where ‘ambiguity’ resides are not going to argue tomorrow about what ‘respect’ requires, I fear they will be gravely disappointed.”

This suggests that irrespective of the new agency deference standard, courts may still have wide latitude to interpret the boundaries of CEQ’s regulatory authority under Skidmore. In the absence of binding precedent, judicial decisions may instead reflect considerations such as legislative intent, broader policy implications, or differing judicial philosophies.

Eli Nachmany has joined the discussion on the Yale Notice & Comment blog about the interaction between the APA’s good cause exception, Loper Bright, and the Trump Administration’s efforts to root out existing unlawful regulations:

Cary Coglianese and Daniel Walters recently published an interesting Notice & Comment post about the President’s memorandum, suggesting that the move shows “just how unsettled, and how unpredictable, the administrative governance game can be in a post-Loper Bright world.” The authors ask: “Did Loper Bright Also Overturn Notice-and-Comment Rulemaking Procedure?” But this is not the right question. The APA’s “good cause” exception established the authority to bypass notice and comment before Loper Bright came down. The question, then as now, is whether delay would contravene the public interest. Loper Bright and the other cited cases merely help with the process of identifying the regulations that qualify for immediate repeal.

Following the law is any federal agency’s first priority. Indeed, in the words of the Supreme Court, “an agency literally has no power to act … unless and until Congress confers power upon it.” Even if a regulation leads to a policy outcome that some might like, that regulation cannot stand if it is inconsistent with either a law that Congress has passed or binding Supreme Court precedent.

The President’s memorandum directing the repeal of unlawful regulations is a win for the rule of law.