In a recent post, the Cato Institute’s Isaiah McKinney presented empirical findings that, over the last three years, circuit courts applied the Chevron “two-step” 84.5% of the time when reviewing agency interpretations of their enabling statutes, with 59.2% of these cases proceeding to a deferential posture at Chevron step two. McKinney contrasted Chevron’s prevalence in […]
Last week, Pacific Legal Foundation (where we work) filed an amended class action complaint challenging the Biden Administration’s plan to cancel up to $519 billion in federally held student debt. The short history of our suit sheds light on the program’s shambolic implementation. After announcing the policy, the Education Department created a website to […]
*This is the second post in a series on Andrew Rudalevige’s new book, By Executive Order: Bureaucratic Management and the Limits of Presidential Power. For other posts in the series, click here. Andrew Rudalevige’s By Executive Order: Bureaucratic Management and the Limits of Presidential Power is an important contribution to our understanding of modern policymaking. In particular, […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. Panel Nixes Rail Reg over Agency Pretext The biggest development last month was the Ninth Circuit’s inaugural application of *pretextual review* as established by the Supreme Court in […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. FTC Gets Yellow Card over Post-Lucia Constitutional Concerns After Free Enterprise Fund and Lucia, the constitutionality of independent agency adjudications became an open question. This legal uncertainty, in turn, engendered a spate of original actions […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. Preliminary Panels: Politics by Other Means? In normal times, injunctive relief is an “extraordinary remedy.” Over the last four years, by contrast, such relief became routine in the Ninth Circuit. While […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of arguably “the second most important court in the land.” Today’s post marks the second anniversary of this series. Let’s get straight to business. CA9’s En Banc Process Is Broken . . . A major purpose of en banc proceedings is to bring uniformity to appellate law. It is somewhat ironic, therefore, that the Ninth […]
In today’s government, presidents are the primary policymakers, due to their management of the administrative state. On January 20th, therefore, rules affecting almost every aspect of American life will pivot 180 degrees, as the White House changes hands from a Republican to a Democrat administration. Consider the current whipsaw in our nation’s capital. The Trump administration is […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. When Trump Is Gone, Will CA9 Start Abnegating? If you’re an anti-administrativist, it’s been a great four years in CA9. During the Trump-era, the Ninth Circuit filled the Federal Reporter with orders […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Last month, I was off studying for the bar, which I ultimately didn’t take because I exercised an 11th hour diploma privilege. Let’s get straight to business. Census Case, Part 1: Final Agency Action? Department of Commerce v. […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” This month, we’re going to take a deep dive into a hot-button issue: nationwide preliminary injunctions. Let’s get straight to business. Surveying the Schizophrenic Law of the Circuit on Universal PIs Prior to the Trump-era, august principles of […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. Border Wall Panel Makes Doctrinal Hash of APA Review One of the 1946 APA’s achievements was to simplify suits against the government. To this end, the Act provides a waiver of […]
Last week, the Supreme Court handed down an administrative law blockbuster in Department of Homeland Security v. Regents of the University of California (DHS v. Regents). Below, I add my thoughts to those already posted by Aaron Nielson, Chris Walker, Daniel Deacon, and Anya Bernstein. Immediate Doctrinal Impact: The Rise of Reliance Interests In Admin Law 101, every student […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. CA9 Chooses Wrong Controversy to Grow Judicial Review of President’s Statutory Powers Courts must set aside agency action that is unreasonable. But when reviewing the president’s statutory powers, courts don’t check […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. April Was the Cruelest Month (for Law’s Abnegation) Does law’s arc bend steadily toward deference? Or does law invariably bend the knee to value preferences? These questions animate this section. In late […]