In 2023, I used this blog to criticize the Supreme Court’s decision in Calcutt v. FDIC as “unnecessary, unfortunate, and unpersuasive, all at the same time.” So I felt vindicated when, last week, in FDA v. Wages & White Lion Investments, the Court clarified that it didn’t really mean what it said in Calcutt. Along […]

The following may be of interest to readers of Notice & Comment: With support from the Hewlett Foundation, Nicholas Bagley (Michigan), Zachary Liscow (Yale), and the Niskanen Center will be hosting the Law of Abundance Conference in early 2026.   A nascent movement known as “the Abundance Agenda” or “the State Capacity Movement” is drawing attention to how lackluster […]

I’ve got a new piece in the Atlantic about the soon-to-be Department of Government Efficiency. Musk and Ramaswamy’s claims depend much more on the finer points of administrative law than I would’ve expected! I thought about mental models when Elon Musk and Vivek Ramaswamy released an op-ed in The Wall Street Journal making their first major statement about the […]

The Michigan Law Review is soliciting proposals for its annual book review for pieces “related to the recent (and ongoing) sea changes in administrative law.” From the request for proposal, which you can find here: This is a unique and expedited request—the call for Book Review submissions has closed for the year. However, the Editors […]

I’ve got an article at The Atlantic about the arguments in Relentless and Loper-Bright. In a world without Chevron, agencies will be hard-pressed to know how deferential the courts will be in reviewing decisions that mix policy and law. “If I’m an agency and I’m trying to be responsible, how is this going to work as […]

Dan Ho and I have an op-ed in The Hill today criticizing the Biden administration’s proposed rules for using artificial intelligence in government services. [W]here the rules could go astray is in their breadth. The rules prohibit the use of AI in “government services” unless agencies comply with an extensive set of procedures. Those procedures […]

Yesterday, in Calcutt v. FDIC, the Supreme Court summarily reversed a Sixth Circuit decision that would have affirmed an FDIC sanction against a banker, even though the agency made two substantive errors in issuing that sanction. In so doing, the Supreme Court reaffirmed the ordinary remand rule and wrote: The Sixth Circuit, for its part, […]

I’ve got a new article up at The Atlantic using the mifepristone case to tee off on both nationwide injunctions and their evil twin, “universal vacatur” under the Administrative Procedure Act. The arguments about nationwide injunctions are by this point familiar, though I still think it’s under-appreciated the extent to which they have always been […]

I was really pleased to have a chance to sit down with Vox’s Ian Millhiser to talk about COVID-19 and the law. Our conversation ranged broadly, from vaccine mandates to religious exercise to the nondelegation doctrine. As a longtime listener of the Weeds, I was thrilled to go on the show. As befits the Weeds’s […]

Last semester, I developed a new class at the University of Michigan called Regulating Contagion: Pandemics and Disease in U.S. Legal History (syllabus here). Drawing partly on a seminar I co-taught back in 2015, and partly on work as special counsel to Governor Whitmer on her COVID-19 response, the class advanced three big ideas. First: […]

I’ve got a new article out at The Atlantic digging into that surprisingly thorny question. At stake here is whether the Biden team can move quickly enough to forestall the Supreme Court from deciding two pending cases involving work requirements in Arkansas and New Hampshire. It’ll be tricky, in part because of some last-minute shenanigans to […]

As countless news stories have now described, Justice Ginsburg’s death and her likely replacement by Judge Amy Coney Barrett have raised the odds that the Supreme Court will hold invalid all or part of the Affordable Care Act. In the New York Times last week, Andy Slavitt and I discussed what that should mean for […]

Yesterday, I canvassed the Michigan governor’s emergency powers, which are surprisingly broad. But they do not cover the waterfront of emergency authority in the state. The director of the Michigan Department of Health and Human Services—currently Robert Gordon—has his own suite of emergency powers. Once the M-DHHS director determines “that control of an epidemic is […]

With just 80 confirmed cases, Michigan has so far been spared an acute outbreak of the coronavirus. But our time is coming. Already, Governor Whitmer has taken steps to slow the virus’s spread, including closing schools and restaurants and banning large public gatherings. She will have to get much more aggressive in the coming weeks […]