Anthony Amsterdam (New York University School of Law) & James S. Liebman (Columbia University - Law School) have posted Loper Bright and the Great Writ (Columbia Human Rights Law Review, February 2025) on SSRN. Here is the abstract:
Chevron deference is dead. The Court’s forty-year, seventy-decision experiment with Article-III-court deference to “reasonable” agency interpretations of ambiguous federal statutes failed, killed in part by concern that it unduly curbed “the judicial Power” to enforce the rule of law in the face of politics, partisanship, and mission-driven agency decision-making.
“AEDPA deference” lives. The Court’s twenty-five-year, seventy-two decision experiment with Article-III-court deference to “reasonable” state-court interpretations of the Constitution under the 1996 Antiterrorism and Effective Death Penalty Act continues to relegate criminal defendants to prison or death, notwithstanding federal habeas judges’ independent judgment that the state courts have misread or misapplied the federal Constitution in adjudicating these defendants’ claims.
How can this be? Only if state judges have more authority to make constitutional law by which federal judges may be bound than federal agencies have to make sub-constitutional law by which federal judges may be bound.
This is obviously wrong. Federal agencies are creatures of Congress to which it may appropriately delegate some of its power to make the law that federal courts then are duty-bound to apply. Neither Congress nor any other authority save the American people by amendment may delegate the making of constitutional law.
Recommended.