In this issue, we celebrate Constitution Day and explore how federal courts are applying Loper Bright to recent cases involving the EPA, FCC, and PBGC—offering a glimpse into the post-Chevron legal landscape.

Constitution Day Essay on Chevron’s Demise and the Promise of Loper Bright

AFP Foundation’s Ryan Mulvey writes:

The Framers’ ingenious design for our constitutional system divided federal power between three distinct but coequal branches: the Executive, the Legislative, and the Judicial. This separation of government authority was intended to safeguard liberty and minimize the infringement of rights. The idea is simple: If one branch has the power, say, to write the law and define its meaning when controversies arise, there is an ever-present danger that abuses of that power will go unchecked. It is better for those who write the law—Congress—those who implement it—the President—and those who tell us what it means—the courts—to keep to their proper roles. 

Yet, for the last four decades, one Supreme Court doctrine—Chevron deference—tended to upend the Framers’ careful balance, empowering unelected bureaucrats to interpret and even rewrite the laws that govern us, while escaping any serious judicial oversight. This Constitution Day 2025, we mark not only the anniversary of our founding charter but the first full year (and some change) since the Supreme Court’s landmark decision in Loper Bright Enterprises v. Raimondo. Not only did Loper Bright definitively overrule Chevron deference, but it restored federal judges to their proper role and has offered Congress an opportunity to reclaim its proper constitutional authority, too. 

Three Circuit Court Decisions Applying Loper

Fifth Circuit Upholds EPA Disapproval of Texas Ozone Implementation Plan Under Loper Bright:

Last week, the Fifth Circuit issued a significant decision in Texas v. EPA, denying Texas’s petition for review of the Environmental Protection Agency’s (“EPA”) disapproval of a State Implementation Plan (“SIP”) under the Clean Air Act (“CAA”).  The case is notable not only for its implications for interstate air pollution regulation, but also for its application of Loper Bright. 

Third Circuit Upholds PBGC Relief-Fund Asset Regulations Under Loper Bright

Earlier this month, the Third Circuit released its decision in In re Yellow Corp., a case that started as a high-stakes bankruptcy dispute and ended up involving a challenge to the Pension Benefit Guaranty Corporation’s (“PBGC”) regulations imposing “reasonable conditions” on the use of COVID-19 relief funds.  The Yellow Corp. decision offers another example of Loper Bright implementation and provides insight into how courts are handling cases involving express delegations of “gap-filling” regulatory authority to agencies in the post-Chevron era. 

Second Circuit Upholds FCC Forfeiture After Identifying Delegation of Discretionary Authority as Required Under Loper Bright

In Verizon Communications Inc. v. Federal Communications Commission, the Second Circuit rejected a petition for review of a forfeiture order imposing nearly $47 million in penalties for violation of the confidentiality provisions of the federal Communications Act.  In doing so, the Circuit offered an important example of how courts will apply the de novo standard of review required by Loper Bright Enterprises v. Raimondo, as well as the limits of that standard when it is clear the best reading of a law is that it delegates some discretionary authority to an agency.

Quick Hits

• 🎙️ Ryan Mulvey Discusses Constitution Day and Loper Bright on Wake Up Live with Christopher DeSimone
  Reflections on the constitutional significance of Loper Bright and its role in restoring judicial independence.
  🔗 Listen here

• 📄 New Article: Interpretive Rules After Loper Bright
  The University of New Hampshire Law Review recently published an article by University of Tulsa law professor Gwendolyn Savitz entitled “Interpretive Rules are the New Regulations: Agency Guidance After Loper Bright.”  The article explores the impact Loper Bright might have on agencies turning to interpretive rules to bypass notice-and-comment rulemaking and, potentially, searching judicial review in a post-Chevron world.
  🔗 Read the article