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One of the most interesting questions coming out of the Supreme Court’s decision in Loper Bright is how lower courts are going to deal with statutory stare decisis. Below we have two posts that explore that question.


** Loper Bright and Stare Decisis in the Ninth Circuit ([link removed])
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AFP Foundation’sRyan Mulvey ([link removed]) explains the Ninth Circuit’s decision earlier this month in Murillo-Chavez v. Bondi ([link removed]) :

“The Ninth Circuit’s decision earlier this month in Murillo-Chavez v. Bondi ([link removed]) reflects a somewhat more nuanced approach, which arguably complements the position ([link removed]) taken by one of my colleagues in response to Tennessee. The Bondi case concerned the Board of Immigration Appeals (“BIA”) and its determination about whether a certain offense qualifies as “crime involving moral turpitude” (“CIMT”). The Ninth Circuit started by noting the obvious tension between Loper Bright’s instruction that a judge provide independent judgment about the best meaning of the law and the duty to afford stare decisis effect to the many Step Two cases involving past deference to BIA’s CIMT determination.

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The Bondi court ultimately decided that, while existing precedent about the meaning of CIMT was relevant—and still good law—it was not binding, and its usefulness was limited in the face of the judges’ obligation to provide their independent judgment about legal meaning.”
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** More on Loper & Stare Decisis ([link removed])
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And Elliot Setzer has this essay ([link removed]) on the topic over at the Yale Notice & Comment blog:

“When the Supreme Court overturned the Chevron doctrine in Loper Bright Enterprises v. Raimondo, it purported to leave intact the holdings of cases decided under Chevron. Chief Justice Roberts wrote that “we do not call into question prior cases that relied on the Chevron framework. The holdings of these cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology.” Lower courts are now grappling with what exactly this means. What constitutes the “holding” of a Chevron case, now entitled to stare decisis effect? In a couple recent decisions, the Sixth Circuit has adopted an exceptionally narrow understanding of Chevron stare decisis. While that approach has some merit as a conceptual matter, it seems unlikely that the Loper Bright Court intended such a destabilization of existing doctrine.”
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