Cass Sunstein called Loper “Our Marbury” in the Duke Law Journal.

The impact of Loper is being felt in our nation’s Capital. The tax bill is being written with added specificity and Loper even starred in a Washington D.C. Court of Appeals oral argument.

Loper Bright’s Role in Endangered Species Act

AFP Foundation’s Michael Pepson wrote a comment supporting the Administration’s effort to rescind the regulatory definition of “harm” under the Endangered Species Act and to instead rely on the statutory definition of “take” without the additional interpretive gloss:

Federal agencies must respect and follow the best reading their organic statutes. Agencies are creatures of statute, which possess only those powers Congress chooses to confer upon them, subject to constitutional limits. They “literally ha[ve] no power to act” absent congressional authorization. Before Loper Bright, the Chevron doctrine allowed agencies to exercise discretionary authority under the guise of resolving statutory ambiguity “even when Congress has given them no power to do so.” In the wake of Loper Bright, federal regulations and other agency statutory interpretations that could only be defended under the Chevron regime as “permissible” interpretations of putatively ambiguous statutory provisions—but which depart from the statute’s single best meaning—cannot be grounded in an actual statutory delegation of discretion and thus fall outside of the agency’s statutory authority.  

Our Marbury: Loper Bright and the Administrative State

Cass Sunstein’s latest piece on Loper Bright was published in the Duke Law Journal: Our Marbury: Loper Bright and the Administrative State. Here’s some of the abstract.

Loper Bright, overruling Chevron, is unmistakably part of administrative law’s current “Grand Narrative,” which sees contemporary administrative agencies with suspicion, as a product of successive breaches of Article I, II, and III of the Constitution. The decision should be seen as our Marbury v. Madison—an effort to insist that it is emphatically the province and duty of the judicial department to say what the law is. But will the decision produce large changes? The answer depends, of course, on the meaning of both Chevron and Loper Bright.

Quick Hits

• Michael Rapoport at Bloomberg Tax has a piece on how “Congressional tax writers are taking steps to head off any future legal challenges to their new tax bill, but it’s a delicate balancing act.”

  • “The bill’s directives for Treasury to act are “more deliberative and detailed” than usual, and that added specificity “may be aimed at reinforcing the Treasury’s authority to issue regulations in anticipation of potential challenges” after Loper Bright, said Jennifer Breen, a partner at Morgan Lewis & Bockius LLP. The ruling was “a wake-up call to Congress,” Bodoh said. “Loper Bright has caused a re-focus on regulatory validity. I don’t think Congress is leaving any of this to chance.”
    
    

• TechFreedom’s Corbin K. Barthold on the FedSoc Blog explores whether or not the Trump Administration has “Good Cause” to skip notice and comment in response to the Administration’s executive order directing agencies to repeal “unlawful, unnecessary, and onerous regulations:”
  
  

• Earlier this month, Loper Bright took center stage in an oral argument before the District of Columbia Court of Appeals:

  • “A three-judge panel of Washington, D.C.’s high court at oral arguments Wednesday investigated how the US Supreme Court’s new agency deference standard applies to courts in the district as part of a dispute over a $5.9 million transfer tax refund. The district government issued an emergency “clarification” amendment to codify deference to its own agencies after the Supreme Court gutted the Chevron doctrine in 2023’s Loper Bright Enterprises v. Raimondo. The doctrine required courts to defer to agency interpretations of ambiguous laws.”