Loper deference

Understanding Loper: A Sheep in Wolves’ Clothing?

The real world effects may be limited. Or they may undercut presidential power, to the surprise of advocates of the unitary executive.

Because there are so many outstanding questions about the Court’s new approach to judicial review, we won’t know its practical impact for some time. Its symbolic impact as an affirmation of conservative ideology is more obvious.

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Understanding Loper: The Grandfather Clause

Hundreds of past federal cases relied on Chevron. They remain good law.

To cushion the shock of abandoning Chevron, the Supreme Court created a safe harbor for past judicial decisions. This was well-advised. The Court itself applied Chevron at least seventy times, as did thousands of lower court decisions. The key question will be the scope of the grandfather clause. The Court’s discussion began by saying that …

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