Vinson & Elkins’ Post

My Perkins Coie colleagues provide an excellent forward-looking analysis of the Supreme Court Loper Bright decision. After the Loper Bright Enterprises decision, deference to merely reasonable agency interpretations is over, as is agency flip-flopping rooted in “Chevron deference.” Agency interpretations may be considered along with everything else in a judge’s toolkit but will no longer receive deference. The long-term result will be to empower courts and regulatory challengers at the expense of executive branch agencies, and the change may be significant in some places. Review of what regulated parties believe to be the “best” interpretation is critical. At the policy level, many important statutory questions will finally get resolved with certainty. 

Still not certain what the major questions doctrine is? You’re in good company! Check out our latest Saturday Seminar for a quick history of the doctrine, what it means to different justices, and what it might mean for administrative law.

The Roberts Supreme Court Continues to Dismantle Federal Regulations of All Kinds. This decision will make unelected Judges and Justices the arbiters of every contested federal regulation, which will monumentally increase the caseloads in Federal Courts, as well as the raw power of every Federal Judge and Justice. Because Congress is not capable of drafting legislation of such specificity that Executive Agencies will no longer need to draft specific regulations to implement the legislation. #judicialbranchpowergrab https://lnkd.in/g9KVXkeP

How do you challenge a regulation adopted by an executive branch agency or department in this state? How do California courts determine the validity of state regulations? The answers are in this week's Micheli Files. Here is a link to my article in Capitol Weekly: https://lnkd.in/gqtZhd3d

As the Supreme Court just concluded its recent term this week, our latest #PTPolicyMatters focuses on the implications of three major #SCOTUS cases that have broad consequences for business and the federal regulatory landscape, as well as an overview of some of the other consequential opinions from the term that have the potential to transform segments of American society. https://lnkd.in/eHY9E3pp

We’d like to thank Law360 for highlighting Partner Paul Sherman's insight discussing updates to the PAGA legislation in California. Sherman added his thoughts on the law that Governor Newsom passed on July 1. To learn more, click here: https://lnkd.in/eJaRAAGF #PAGA #employmentlaw

The longstanding goal of eliminating the Chevron doctrine has become a reality, ushering in a regulatory landscape marked by significant uncertainty. The US Supreme Court's Loper Bright decision dismantled the 40-year-old Chevron doctrine, which mandated judicial deference to agency interpretations of ambiguous laws. The Corner Post ruling extended the statute of limitations for challenging government regulations. This shift places numerous regulations under heightened scrutiny and may constrain agencies from implementing new rules that were previously deemed legally sound. A trend favoring industries over the administrative state is already emerging in the courts. At least five courts have cited the end of the Chevron doctrine to block Biden administration rules, with challengers leveraging the ruling to strengthen their cases. As the judiciary defines the post-Chevron environment, it will become increasingly challenging for businesses and individuals to rely on agency actions. Key developments post-Chevron include: Overtime: Hours after Loper Bright, a federal judge blocked the Labor Department’s overtime rule in Texas. LGBTQ+ Protections in Health Care: Courts in Mississippi, Florida, and Texas have cited the decision to prevent enforcement of rules prohibiting healthcare discrimination. ESG 401(k) Rule: A Fifth Circuit panel scrutinized a Labor Department rule promoting sustainable investing, previously upheld based on Chevron deference. Noncompete Agreements: A federal judge in Texas halted the FTC’s ban on noncompete agreements, and a separate case in Pennsylvania saw the FTC defending its rulemaking authority. Labor Board: A D.C. Circuit ruling indicated the limited impact of Loper Bright on the National Labor Relations Board. Chemical Rules: Loper Bright and Corner Post are expected to increase industry success in challenging commercial chemical laws, though divergent lower court rulings are anticipated. This evolving landscape requires close attention as businesses navigate the uncertainties and opportunities of the post-Chevron era.

Post-Chevron, Senators move to reclaim authority from regulatory agencies Following the Supreme Court’s ruling in Loper Bright Enterprises v. Raimondo, No. 22-451 (U.S. June 28, 2024), Sen. Eric Schmitt (R-Mo.) has introduced a bill—the Separation of Powers Restoration Act (SOPRA) of 2024—that would clarify the nature of judicial review of agency interpretations of statutory and regulatory provisions. Representative Scott Fitzgerald (R-Wis.) introduced the House companion to SOPRA. The House passed the bill on a party line vote. Schmitt is leading the effort for the legislative branch to retake legislative authority from the regulatory agencies. That effort includes the filing of SOPRA, the launching of a working group of Senators that will regularly meet to discuss furthering this goal, and letters to 101 agencies that have published more than 50 final rules since 2000 demanding answers on how current regulatory processes will be handled following the Loper Bright decision. This story can be read in its entirety on the Wolters Kluwer Vital Law site at  https://lnkd.in/ghpD4txH. As reported by Colleen M. Svelnis #AdministrativeAgencies #SeparationOfPowers #JudicialReview #ExecutiveDeference