The Trump Administration continues to cite and rely on Loper Bright to support its agenda, but both Loper and Relentless continue to wind through the courts. Last month, the Justice Department entered talks to potentially settle the cases.

Justice Department in Talks to Settle Loper Bright

NRO’s Dan McLaughlin on the recent DOJ filing asking the D.C. Circuit to hold Loper Bright in abeyance on remand while the parties pursue settlement:

The Loper Bright and Relentless plaintiffs could still have a long voyage ahead in the appeals courts — unless the government listens to reason. But it seems that attention to the anomalous position taken by the DOJ and Commerce may be paying off: The government has entered into talks with the Loper Bright plaintiffs to settle the case, and any such settlement would necessarily entail at least some retreat from the original regulations.

Trump Administration Using AI to Speed Up Deregulatory Effort After Loper Bright

The first several months of the Trump Administration have focused on executive orders, agency reorganization, and budget reconciliation. But attention is now shifting to the meat of Executive Branch reform: deregulation. The Washington Post reports that DOGE has built a deregulatory tool that harnesses AI to assist agencies in identifying and eliminating unnecessary or unlawful regulations.

The July 1st DOGE presentation, obtained by the Post, highlights the AI tools and cites Loper Bright and Executive Order 14,219 as the basis for agencies to identify rules as exceeding statutory authorization. Any deregulatory effort will likely face swift legal challenge under the Administrative Procedure Act. And the novel use of AI tools is sure to raise a host of new legal questions.

No Signs of a Skidmore Revival at the Supreme Court

In a July SCOTUSblog post, Columbia University law professor Abbe Gluck suggested the Supreme Court’s recent opinion in Kennedy v. Braidwood Management might reflect what some have forecast as a “revival” of so-called “Skidmore deference.”  On her reading of Kennedy, the Court’s examination of “considered and consistent Executive Branch practice—which beg[ins] contemporaneously with enactment of [a] statute”—should not only play an essential role for judges offering their independent judgment as to the best meaning of the law, as required by Loper Bright, but also hints at a reinvigoration of the deference—or “weight”—given to agency legal interpretations under Skidmore v. Swift & Co.

Although Professor Gluck is right to highlight Justice Kavanaugh’s emphasis on the utility of longstanding and consistent agency interpretations, it would be wrong to see such emphasis as a revival of Skidmore, let alone any other type of special solicitude for the views of agency “experts.”  The Kennedy decision—along with other cases this term like McLaughlin Chiropractic and VanDerStok—is best understood as part of the Supreme Court’s efforts in the wake of Loper Bright to revitalize the traditional canons of statutory interpretation.  Those canons, which play a vital role in the judicial act, long predate Chevron, Skidmore, or the modern administrative state.

Quick Hits

• Ryan Mulvey writes about how the Seventh Circuit has rejected an argument that Loper Bright impacts its standard of appellate review under the Freedom of Information Act.

• Late last week, Loper Bright was mentioned during oral argument in the Trump tariff challenge at the Federal Circuit. The Wall Street Journal Editorial Page described the exchange:

  • Mr. Nixon’s tariffs for the most part also didn’t exceed the tariff “schedule that had already been enacted,” said another judge. Mr. Trump’s do. Mr. Shumate’s fall-back was that IEEPA was meant to be interpreted “very broadly.” But “is that really how we interpret statutes anymore?” and “do you think that standard survives Loper Bright?” judges asked.

• Senator James Lankford chaired a hearing in the Subcommittee on Border Management, Federal Workforce and Regulatory Affairs on Loper Bright and Congress. Witnesses include Susan Dudley, Chad Squitieri, and Allyson Schwartz.

• The Brookings Institution hosted an essay by two professors, Raquel Muñiz and Rebecca Natow, profiling Loper Bright‘s impact on education law.