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This teleforum focuses on the sundry problems with so-called “Brand X deference,” whose name derives from the 2005 Supreme Court decision in National Cable & Telecom. Assoc. v. Brand X Internet Services. The judicial deference holding in the case was that federal agencies may issue new regulations that supersede previous interpretations of the relevant statute made by federal courts of appeals (unless that prior federal-court interpretation purported to be the only permissible interpretation of the statute). Hence, even if a federal circuit court of appeals has previously interpreted a statute, if an agency with jurisdiction subsequently issues a new regulation interpreting that statute differently, the federal court in a future case must defer (i.e., give Chevron deference) to the agency’s new interpretation of the statute.
This month the U.S. Supreme Court will consider whether or not to take up a case that could do for Brand X deference what Kisor v. Wilkie did for Auer deference. That is, the Court could radically reduce the scope of Brand X’s application and/or clarify that Brand X deference only applies when a prior federal court did not use traditional tools of statutory analysis in interpreting the statutory provision at issue. Or, the Court could go even further and do away with Brand X deference altogether, as then-Judge Gorsuch called for when he was serving on the Tenth Circuit.
Join us for this timely discussion of Baldwin v. U.S. (cert pending).
— Mark Chenoweth, Executive Director & General Counsel, New Civil Liberties Alliance
— Moderator: Robert T. Carney, Senior Counsel, Caplin & Drysdale
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