In U.S. v. Bricker, the Sixth Circuit grappled with whether the Sentencing Commission could use a policy statement to expand the scope of the federal compassionate release statute, 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.
