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The Secretary of Commerce and the other respondents in Loper Bright Enterprises, et al. v. Raimondo have filed their merits brief in the U.S. Supreme Court urging the Court not to overrule its 1984 decision in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.  The petitioners filed their merits brief on July 17, 2023 and numerous amicus briefs in support of the petitioners have been filed. … Continue Reading

Yesterday, I moderated a live and virtual program at the American Bar Association Business Law Section 2023 Fall Meeting in Chicago. The program was entitled: “U.S. Supreme Court to Revisit Chevron Deference: What the SCOTUS Decision Could Mean for CFPB, FTC and Federal Banking Agency Regulations.” My co-panelists were Professor Jonathan S.… Continue Reading

The petitioners in Loper Bright Enterprises, et al. v. Raimondo have filed their merits brief in the U.S. Supreme Court urging the Court to overrule its 1984 decision in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.  That decision produced what became known as the “Chevron framework”–the analysis that courts typically invoke when reviewing a federal agency’s interpretation of a statute. … Continue Reading

Since the U.S. Supreme Court’s 1984 Chevron decision, federal courts have typically applied a two-step analysis known as the “Chevron framework” to determine whether a court should defer to a federal agency’s interpretation of a statute.  SCOTUS has now agreed to hear the Loper case next Term in which the continued viability of the Chevron framework is being directly challenged. … Continue Reading

In its decision last week in Sackett v. Environmental Protection Agency, the U.S. Supreme Court issued a unanimous ruling that severely limits the federal government’s jurisdiction over wetlands and tributaries.  Specifically, the Court rejected the Environmental Protection Agency’s (EPA) regulatory definition of what constitutes “Waters of the United States” subject to federal jurisdiction under the Clean Water Act (CWA). … Continue Reading

The U.S. Supreme Court has agreed to hear a case in which the petitioners are challenging the continued viability of the Chevron framework that courts typically invoke when reviewing a federal agency’s interpretation of a statute.  While Loper Bright Enterprises, et al. v. Raimondo involves a regulation of the National Marine Fisheries Service (NMFS), the Supreme Court’s decision could have significant potential implications for when courts should give deference to regulations issued by all federal agencies, including the CFPB, FTC, and federal banking agencies.… Continue Reading

At the end of last month, the U.S. Supreme Court heard oral argument in Kisor v. Wilkie, a case in which the question before the Court is whether it should overrule a line of cases instructing courts to defer to an agency’s interpretation of its own regulation, a doctrine sometimes referred to as “Auer deference.” … Continue Reading