This is the second part of a two-part blogpost previewing United States v. Zubaydah, one of two cases this Supreme Court term in which the Court will take up the rarely-discussed state secrets privilege. Part I of this series laid out the state secrets privilege (largely focusing on United States v. Reynolds, 345 U.S. 1 […]
The state secrets privilege allows the government to prevent the disclosure of military and diplomatic secrets in litigation. There is little Supreme Court precedent regarding the privilege — the seminal case being United States v. Reynolds, 345 U.S. 1 (1953). However, the Court has granted certiorari in two state secrets cases — U.S. v. Zubaydah, […]
The Trump Administration displayed profound disdain for long-standing policies and norms, as well as the career federal employees who often serve as their guardians. Those career officials, formerly disparaged as “bureaucrats,” but more recently collectively cast as “the deep state,” resisted, sometimes by speaking out publicly. This pattern was particularly pronounced in the field of […]
Many municipalities offer time-limited free parking in municipally-owned public lots. Parking authorities enforce those time limits by having parking enforcement officers make periodic visits to the lot. During each visit the officers chalk the tires of all cars present in the parking lot. If any car remains when the next periodic visit occurs, the chalk […]
Can Congress enact a general statute and impose upon future Congress’ an obligation to either (1) expressly acknowledge the general statute before abrogating it or (2) expressly state their desire to depart from it? This series, prompted by Judge Bumatay’s dissent in Investigative Reporting v. Department of Justice, 982 F.3d 668 (Dec. 3, 2020), takes […]
Can Congress enact a general statute and impose upon future Congress’ the obligation to either expressly acknowledge the general statute before abrogating it or expressly state their desire to depart from it? This question has reemerged recently primarily due to Judge Bumatay’s dissent in Investigative Reporting v. Department of Justice, 982 F.3d 668 (Dec. 3, […]
Congress enacts a statute, and includes within it a provision requiring that any future law enacted to limit the statute’s scope expressly refer to the statute. Is such a provision unconstitutional, and thus void ab initio? The argument, which has some support in Supreme Court precedent, has recently been deployed by Ninth Circuit Judge Patrick […]
“From tragedy we draw knowledge to protect the safety of us all.”[1] When an aviation accident or a significant highway, marine, railroad, pipeline, or hazardous-materials accident occurs, the National Transportation Safety Board (“NTSB”) springs into action. See, 49 U.S.C. § 1131 (listing types of accidents within the NTSB’s jurisdiction). The NTSB investigates the accident’s causes, […]
Is a memorandum or communication encompassing several distinct subjects one “record” or multiple “records”? Thus, in response to a Freedom of Information Act (“FOIA”) request, can an agency redact as non-responsive the portions of the memorandum/communication involving subjects outside the scope of a FOIA request? I. The Concept of “Scoping” Imagine, a State Department cable […]
Sunshine Week, March 15-19, 2021, will soon be upon us. And just in time for its celebrants’ revelries (or perhaps simply virtual conferences and commemorations), the Supreme Court has handed down the major Freedom of Information Act (“FOIA”) decision expected this term, U.S. Fish & Wildlife Service v. Sierra Club, 2021 WL 816352. Alas, the […]
Last week, by a complaint captioned Smith & Wesson v. Grewal, the firearms manufacturer sued New Jersey’s Attorney General in federal court to contest an administrative subpoena regarding its advertising practices.[1] Smith & Wesson sought to enjoin (1) the Attorney General from seeking to enforce the subpoena, and (2) the New Jersey state courts from […]
Summary: This post highlights the Second Circuit’s recent decision allowing the State Department to withhold records regarding visa revocations from Freedom of Information Act (“FOIA”) requesters. The post then critiques the Court’s problematic use of textualist methodology, noting that it presumes imprecise Congressional drafting, In Spadaro v. United States Customs and Border Protection,[1] the Second […]
After a difficult 17-month tenure as President Trump’s third National Security Advisor, John Bolton was ready to talk about his experiences, including presidential conduct he found “deeply disturbing.” But he was not eager to talk with any of the nation’s elected representatives who were participating in impeachment proceedings — proceedings to determine whether the President’s […]
Most of administrative law scholarship, and certainly the most widely cited and acclaimed scholarly contributions to the field, appear to be color-blind.[1] Most leading administrative law decisions seem to be so as well. Should we as scholars and thinkers in the field stand chastened by such a state of affairs? What role should race assume in administrative […]
In Waterfront Commission of New York Harbor v. Murphy, 2020 WL 3025215 (3d Cir. June 5, 2020), rev’g, 429 F.Supp.3d 1 (D.N.J. 2019), the Third Circuit decided that a state could terminate an agency created pursuant to federal law, and transfer the agency’s functions to itself. Say what? OK, it is not quite that simple. […]