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Loper Bright had a big week in DC with important citations from both the U.S. Supreme Court and D.C. Circuit. It also drove conversation at the Bipartisan Policy Center on how Congress should legislate in the new Loper Bright era.

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** Loper Bright Cited in D.C. Circuit’s Decision in Alien Enemies Act Case ([link removed])
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AFP Foundation’s Ryan Mulvey ([link removed]) writes about the D.C. Circuit denying ([link removed]) the federal government’s emergency request to stay a pair of temporary restraining orders in J.G.G. v. Trump ([link removed]) , a high-profile case challenging the Trump Administration’s invocation ([link removed]) of the Alien Enemies Act of 1798 ([link removed]) (“AEA”):

Judge Millet used the decision to support her argument that the government cannot sidestep judicial review of its use of the AEA by claiming sole interpretative authority for when the AEA’s preconditions are triggered.

Like Judge Henderson, Millet’s argument about the scope of review under the AEA seems to depend on her view that it is the job of courts to interpret statutory terms, even when those terms are found in statutes implicating core Article II authority. On her view, insofar as statutory language can be construed without reference to political judgments, the political-question doctrine does not apply. Thus, again citing Loper Bright, Judge Millet insists the AEA’s phrases “invasion,” “predatory incursion,” and “foreign nation or government” are all “objectively discernable from statutory text and context,” and present an question of interpretation rather than presidential discretion. “The judiciary can resolve this disagreement with settled tools of statutory construction,” she writes.
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** SCOTUS relies on Loper Bright to uphold ATF Rule Interpreting the Gun Control Act to Reach Kits in Bondi v. Vanderstock ([link removed])
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AFP Foundation’s Cindy Crawford ([link removed]) explains that the ATF’s consistent prior practice, coupled with the lack of conflict between the rule and the text of the GCA carried the day in Bondi v. Vanderstock ([link removed]) :

In upholding the ATF’s interpretation of the GCA, the Court in Bondi v. Vanderstock reviewed the variety of applications the ATF made over the decades and noted that “the agency has consistently interpreted subsection (B) to reach some unfinished frames and receivers”. Thus, applying Loper Bright, the Court upheld the ATF’s interpretation, explaining that:

while “courts must exercise independent judgment in determining the meaning of statutory provisions,” the contemporary and consistent views of a coordinate branch of government can provide evidence of the law’s meaning. Loper Bright Enterprises v. Raimondo, 603 U. S. 369, 394 (2024).

Case Western Law Professor Jonathan Adler also noted ([link removed]) the Loper Bright citation, writing:

This reference to Loper Bright Enterprises underscores that the justices are concerned about the sort of dynamic that motivated the major questions decisions–the discovery of latent, previously undiscovered and unheralded sources of agency authority in long extant statutes–and not about disregarding agency interpretations altogether. It also suggests that the Trump Administration can expect resistance if it seeks to adopt new interpretations of old statutes, particularly where there is a long history of consistent agency understanding and application of the law in question.
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** Bipartisan Policy Center Releases Report on “Legislating After Loper” ([link removed])
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* The Bipartisan Policy Center hosted a launch event on its report, “Legislating After Loper: Practical Solutions for a Post-Chevron Congress ([link removed]) ,” written by members of its Working Group on Congress, Courts, and Administrative Law.
+ The Working Group is co-chaired by Former Senators Heidi Heitkamp (D-ND) and Mel Martinez (R-FL) along with eight working group members ([link removed]) .

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