Justice Department in Talks to Settle Loper Bright
NRO’s Dan McLaughlin on the recent DOJ filing asking the D.C. Circuit to hold Loper Bright in abeyance on remand while the parties pursue settlement: The Loper Bright and Relentless plaintiffs could still have a long voyage ahead in the appeals courts — unless the government listens to reason. But it seems that attention…
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Justice Department in Talks to Settle Loper Bright
NRO’s Dan McLaughlin on the recent DOJ filing asking the D.C. Circuit to hold Loper Bright in abeyance on remand while the parties pursue settlement: The Loper Bright and Relentless plaintiffs could still have a long voyage ahead in the appeals courts — unless the government listens to reason. But it seems that attention to the anomalous position taken…
No Signs of a Skidmore Revival at the Supreme Court
Earlier this week at SCOTUSblog, Columbia University law professor Abbe Gluck suggested the Supreme Court’s recent opinion in Kennedy v. Braidwood Management might reflect what some have forecast as a “revival” of so-called “Skidmore deference.” On her reading of Kennedy, the Court’s examination of “considered and consistent Executive Branch practice—which beg[ins] contemporaneously with enactment of…
Rhode Island Judge Rules Against Fishermen in Companion Case to Loper Bright
A federal judge in the District of Rhode Island ruled in favor of the government yesterday in Relentless v. Department of Commerce, the companion case to Loper Bright v. Raimondo, which was sent back to lower courts on remand after the Supreme Court’s historic decision last year. With the end of Chevron, the district court…
SCOTUSblog Term Review on Deference
At SCOTUSblog, Abbe R. Gluck writes about Kennedy v. Braidwood Management, and ” the broader question of how the court will grapple with questions of expertise in the wake of its 2024 decision overruling Chevron v. Natural Resources Defense Council, the key agency-deference case of the modern era.” Finally, for good measure, the opinion concludes with a…
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…
New Paper Argues for “Gray Doctrine” of Implicit Delegation
Harvard Law School’s Matthew Stephenson recently published “The Gray Area: Finding Implicit Delegation to Agencies After Loper Bright.” From the abstract: This Article argues that the canonical pre-Chevron cases Gray v. Powell and NLRB v. Hearst Publications, together with their antecedents and progeny, provide a useful framework for distinguishing those interpretive questions on which courts ought to find implicit…
Loper Surfaces in FCC v. Consumers’ Research—A Nondelegation Challenge to the Universal Service Fund
This past Term, the Supreme Court cited Loper Bright in several statutory interpretation decisions, including Seven County Infrastructure Coalition v. Eagle County, Bondi v. VanDerStock, McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., and City and County of San Francisco v. EPA. Loper Bright surfaced again on the last day of the Term in FCC v….
Loper, Stare Decisis, & the Endangered Species Act
Two commenters from the NYU School of Law’s Institute for Policy Integrity have a piece on the Yale Notice & Comment blog challenging the Trump Administration’s invocation of Loper Bright as a nondiscretionary basis to rescind the existing regulatory definition of “harm” as it applies to the Endangered Species Act. Jack Jones and Max Sarinsky…
Americans for Prosperity Foundation releases summary of Supreme Court engagement for October 2024 term
Arlington, VA – Americans for Prosperity Foundation today released a report of its amicus engagement during the October 2024 Supreme Court term. AFP Foundation Chief Policy Counsel James Valvo said: “AFPF remains committed to providing the Supreme Court with the best legal arguments to defend liberty and ensure the proper textual interpretation of the Constitution and other laws. We…