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A Sixth Circuit dissent argues that Brand X remains good law for express delegations. But does Brand X even have any life left after Loper Bright?

The commentary and scholarship on Loper continue to be churned out covering topics like the Trump Administration’s efforts to roll back regulation and Section 230.


** Does Brand X Survive Loper Bright For Express Delegations? ([link removed])
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AFP Foundation’s Michael Pepson on if a federal agency can use Brand X to overrule a federal court decision after Loper Bright:

In U.S. v. Bricker ([link removed]) , the Sixth Circuit grappled with whether the Sentencing Commission could use a policy statement to expand the scope of the federal compassionate release statute ([link removed]) , which authorizes early release for “extraordinary and compelling reasons,” to cover nonretroactive changes in sentencing law, when the en banc Sixth Circuit previously reached the opposite conclusion.

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But does Brand X even have any life left after Loper Bright? Although Loper Bright did not squarely overrule Brand X for that matter, City of Arlington v. FCC, which allowed agencies to demand that courts grant Chevron deference to their views on the scope of their jurisdiction—there is good reason to think that Loper Bright necessarily interred those misguided decisions as well. After all, the Brand X Court itself said that the “principle” that decision announced “follows from Chevron itself.” And Loper Bright overruled Chevron.
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** Bloomberg Law Podcast Series on Loper Airs Second Episode ([link removed])
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Bloomberg Law’s UnCommon Law podcast ([link removed]) continues its series on the “story behind the fishing industry’s Chevron doctrine challenge:”

This season on UnCommon Law, we’re exploring the limits of agency power. To what extent are federal agencies authorized to create and implement regulations that aren’t explicitly mandated by Congress? And what happens when an agency goes too far? In this episode, the story of the fishermen who fought back.

Featuring:
* Wayne Reichle, president of Lund’s Fisheries
* Jeff Kaelin, director of sustainability and government relations at Lund’s Fisheries
* Ryan Mulvey, counsel with the Cause of Action Institute
* Erica Fuller, senior counsel with the Conservation Law Foundation
* Leif Axelsson, captain of the Dyrsten fishing vessel
* Greg Stohr, Supreme Court reporter for Bloomberg News

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** Quick Hits
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* Eli Nachmany has joined the discussion ([link removed]) on the Yale Notice & Comment blog ([link removed]) about the interaction between the APA’s good cause exception, Loper Bright, and the Trump Administration’s efforts to root out existing unlawful regulations
* Lawrence J. Spiwak, President of the Phoenix Center for Advanced Legal & Economic Public Policy Studies, writes ([link removed]) on the FedSoc Blog ([link removed]) that the “FCC still can’t interpret Section 230:”
* Finn Dobkin, a Senior Policy Analyst at the George Washington University Regulatory Studies Center, published ([link removed]) a working paper titled “Uncertain Authority ([link removed]) ,” examining recent legal and institutional changes surrounding the Council on Environmental Quality (CEQ)’s authority to issue binding National Environmental Policy Act (NEPA) rules.
* Joseph A. D’Angelo from the Florida International University College of Law published ([link removed]) “Chevron Solutions: Restoring the Separation of Powers in a Post-Chevron Landscape ([link removed]) ” in the University of Florida’s Journal of Law and Public Policy.


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