Jeremy Paner Discusses Impact of Supreme Court Loper Bright Decision Alongside Trump’s Deregulatory Agenda

In Corporate Compliance Insights, Jeremy Paner discussed the challenges compliance professionals face given the combination of the Supreme Court’s 2024 Loper Bright decision with President Donald Trump’s deregulatory agenda.

The Loper Bright decision overturned the decades-old Chevron doctrine, eliminating judicial deference to agency interpretations, which allowed the Trump administration, through executive orders, to direct agencies to repeal regulations deemed inconsistent with Loper Bright, while sidestepping notice-and-comment rulemaking.

Paner explored the impact on the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), which is the only U.S. agency granted “extreme deference” that goes well beyond the prior Chevron standard. This is because of OFAC’s unique role at the intersection of national security, foreign policy and administrative law.

Despite this, Paner pointed to a November 2024 decision by the Fifth Circuit in Van Loon v. Department of the Treasury to follow Loper Bright and decline to defer to OFAC’s interpretation of “property” as it relates to certain cryptocurrency “smart contracts.”

“In my informed opinion, the Fifth Circuit was incorrect in its reading of the definition of ‘property’ and ‘services,’” Paner said. He added that while the narrow issue was not appealed, he strongly believes the Supreme Court would have reversed the decision.

More broadly, while litigants have challenged OFAC actions by citing Loper, these challenges involve claims that OFAC acted “arbitrary and capriciously” in making determinations that certain persons meet the criteria for being sanctioned, Paner said. However, the Loper decision has no effect on judicial challenges to those determinations, he added.

Read the article.