Bloomberg Law on Appeals Courts and Loper

Bloomberg Law’s Robert Iafolla writes about how “circuit courts have started going in different directions on the level of deference judges should grant agencies.”

Federal appeals courts are still figuring out how much weight to give to agencies’ views of their legal authority, a year after the US Supreme Court said judges must interpret relevant laws.

…

“The lower courts aren’t certain what to do with Skidmore after Loper Bright,” said Kristin Hickman, an administrative law professor at the University of Minnesota. “What we’re seeing reflected in the Ninth Circuit and Fifth Circuit is emblematic of that uncertainty.”

…

Loper Bright instructed courts to treat Skidmore as an optional canon of construction, said Eric Bolinder, an administrative law professor at Liberty University. That’s how the justices themselves used Skidmore—without citing it—in a March decision upholding regulations on ghost guns, he said.