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Siren Retail Corporation: Another Nail in the Coffin of NLRB Deference

Earlier this summer, I highlighted the D.C. Circuit’s decision in Hospital Menonita and its rejection of deference to the National Labor Relations Board. Last week, in Siren Retail Corporation v. NLRB, the Second Circuit joined the ranks of the Fourth, Fifth, Sixth, Tenth, and D.C. Circuits by emphasizing the judiciary’s obligation, after Loper Bright, to…

Yanez Piedra and Statutory Stare Decisis After Loper Bright

One of the more doctrinally vexing passages in Loper Bright Enterprises v. Raimondo is the Supreme Court’s admonition that, notwithstanding the significant doctrinal change caused by the overruling of Chevron, “holdings of those cases” previously decided under that interpretive framework would “still [be] subject to statutory stare decisis.” As Chief Justice Roberts explained, “[m]ere reliance…

Podcast: Skidmore After Loper Bright

Catholic University Law School Professor and Director of the Separation of Powers Institute Chad Squitieri discusses Skidmore v. Swift & Co., including its status after Loper Bright Enterprises v. Raimondo, with University of Minnesota Law Professor Kristin Hickman.

AFPF Marks Two Years of Loper Bright with Sen. Schmitt & Expert Panelists

Last month, Americans for Prosperity Foundation (“AFPF”) hosted a special summit marking the two-year anniversary of the Supreme Court’s momentous decision in Loper Bright Enterprises v. Raimondo. The event was well attended, and registrants spent a half-day listening to experts explore how Loper Bright is driving the Trump Administration’s regulatory agenda and giving Congress the opportunity to reassert its Article I authority and rethink its relationship with the administrative state. While most public debate about Loper Bright understandably has focused on developments…

Judge gavel and scale of justice in the law faculty library.

The Hospital Menonita Dissent Demonstrates Why Loper Bright Must be Constitutionalized

By John J. Vecchione Ryan Mulvey has ably discussed the implications of the history and holding of Hospital Menonita de Guayanma v. NLRB in these pages. To sum up, the NLRB had a successor-bar rule requiring that an employer deal with a union for a year after taking over the company based on an irrebuttable…

The E. Barrett Prettyman United States Court House in Washington, D.C., home to the United States District Court for the District of Columbia, the United States Court of Appeals for the District of Columbia Circuit, and the United States Foreign Intelligence Surveillance Court (FISA/FISC).

Environmental Defense Fund v. EPA: Does Loper Bright Impact the Chenery Doctrine?

In Environmental Defense Fund v. EPA, the D.C. Circuit recently flagged an interesting impact Loper Bright might have on administrative law. Judge Henderson’s opinion suggests the possibility that, after Loper Bright, the Chenery doctrine—which holds that “reviewing courts ‘must judge the propriety of [agency] action solely by the grounds invoked by the agency’”—may not apply to “pure statutory interpretation questions.” This question matters because in challenges to agency decisions like federal regulations and adjudications, to the extent the Chenery doctrine applies it…

Lenity After Loper Bright: Deference and Liberty in Criminal Law

Earlier this spring, in Rutherford v. United States, the Supreme Court held the U.S. Sentencing Commission’s interpretation of 18 U.S.C. § 3582(c)(1) was inconsistent with the underlying statutory text, and that nonretroactive changes in sentencing law could not qualify as “extraordinary and compelling reasons” to justify early release. That decision, and its explanation of the principles that limit the Commission’s delegated authority, accentuates how Loper Bright v. Raimondo now binds every agency—including the Commission. In her opinion for the majority, Justice Barrett…

Hospital Menonita and the Future of NLRB Deference

In the wake of Loper Bright and the end of Chevron deference, commentators have wondered whether the Supreme Court’s definitive interpretation of Section 706 could spell the end of other deference doctrines, including those that have developed outside the context of the APA. One conspicuous body of caselaw under suspicion involves deference to the National Labor Relations Board (“NLRB”) and its interpretations of the National Labor Relations Act (“NLRA”). The D.C. Circuit’s decision last week in Hospital Menonita de…

Enscription on the back side of the US Supreme Court (rarely seen by most visitors, who pass by only the front of the building).

Loper Bright’s Penalty-Default Rule

Professor John Meisel’s recent post at the Yale Journal on Regulation’s Notice & Comment blog offers a fascinating framework for understanding how the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo creates an incentive for Congress to avoid “statutory vagueness” and “draft more precise statutes.” Meisel characterizes the Court’s decision as establishing a “penalty…