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. …
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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…
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…
De Novo Review Is Working: A Response to CPR’s Loper Bright Report
Last month, the Center for Progressive Reform (“CPR”) published a report analyzing the reception of Loper Bright in the lower courts. CPR’s headline empirical finding is that agency “win” rates have dropped from roughly 70% under Chevron to just 57% in the fourteen months following the Loper Bright decision. Given this shift, you might expect…
AFPF Launches Reg Reform Tracker, Tracing Impact of Loper Bright and Trump EOs
In Loper Bright v. Raimondo, the Supreme Court overturned Chevron deference, ending forty years of courts deferring to agency statutory interpretations. Now, the duty of saying what the law is has returned to where it belongs: the courts. Two years later, federal agencies are quickly rewriting the regulatory landscape, reconsidering many old regulatory interpretations that…
Americans for Prosperity Foundation Applauds Return of Endangered Species Act Regulation to Statutory Text “Based On” Loper Bright
The Departments of Interior and Commerce announced the finalization of a rule rescinding regulations issued by U.S. Fish and Wildlife Service and the National Marine Fisheries Service that had dramatically expanded the scope of the Endangered Species Act to potentially criminalize conduct and private land use decisions Congress did not statutorily authorize the Services to reach. The announcement explains that “[t]his reform is based on the Supreme Court’s 2024 decision in Loper Bright v. Raimondo[.]” The Services concluded that their regulations were not the best reading of…
Stand Together profiles how New Jersey Fishermen Helped reshape Government Power
In June 2024, a landmark Supreme Court decision — Loper Bright Enterprises v. Raimondo — changed how federal laws are interpreted. While government agencies possess the constitutional authority to create regulations that explain how to implement a statute on a daily basis, they do not have the authority to interpret unclear laws. In the Loper Bright case, a federal…
Americans For Prosperity Foundation Files Comment in Support of X Corp.’s Petition to End Administrative Overreach and Protect Free Speech
On June 29th, Americans for Prosperity Foundation filed a comment in support of X Corp.’s Petition to end or modify a 20-year Federal Trade Commission administrative monitoring order the company (then Twitter) entered into in 2022 shortly before a change in ownership. AFPF believes that protection of the freedoms of expression and association, guaranteed by…
Ryan Mulvey on Loper’s Impact on Rulemaking
AFP Foundation’s Ryan Mulvey in RealClearPolicy on how “Loper Bright has proven more immediately transformative for the executive branch — and it may still force Congress to confront responsibilities it has long avoided”: In practice, agencies are increasingly approaching rulemaking with an eye toward whether their interpretations can survive independent judicial review as the best reading…
