This is the second of three posts assessing Judge Aileen Cannon’s dismissal of an indictment against Donald Trump and two co-conspirators upon finding the Attorney General’s appointment of Jack Smith violated the Appointments Clause. This three-part series assumes that Judge Cannon correctly decided the constitutional question and, instead, assesses the appropriateness of the Judge’s wholesale […]
“[T]he aspiration to effective individual remediation for every constitutional violation represents an important remedial principle, but not an unqualified command.” Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731, 1789 (1991) Judge Aileen Cannon recently dismissed an indictment against Donald Trump and two co-conspirators upon […]
Many state and local officials host social media sites and use them to converse with followers on matters related to their governmental responsibilities, among other things.[1] Not surprisingly, many choose to block from their sites certain members of the public they find disagreeable.[2] Being disagreeable, or at least in disagreement with such actions, blocked followers […]
In Chewy v. U.S. Department of Labor, 69 F.4th 773 (11th Cir. May 30, 2023), an Eleventh Circuit panel reversed the Occupational Safety & Health Administration’s (“OSHA”) imposition of a penalty upon an employer under the general obligation to ensure worker safety. The case involved the use of forklifts in proximity to shelving. In such […]
May an agency revive a defunct rulemaking without notice, and then immediately promulgate a lightly revised version of the proposed rule as a final rule? The Department of Health and Human Services (“HSS”) arguably did just that in promulgating its rule specifying the administrative dispute resolution (“ADR”) process[1] for conflicts between drug makers and certain […]
Can an agency properly invoke the deliberative process privilege to shield internal deliberations over a sham memo requesting that another agency take action, knowing that the recipient agency will use the request to hide the real reason for its contemplated action? Earlier this year, the D.C. Circuit answered in the affirmative. Campaign Legal Center v. […]
Can an agency properly invoke the deliberative process privilege to shield internal deliberations over a sham memo requesting that another agency take action, knowing that the recipient agency will use the request to hide the real reason for its contemplated action? Earlier this year, the D.C. Circuit answered in the affirmative. Campaign Legal Center v. […]
Can an agency properly invoke the deliberative process privilege to shield internal deliberations over a sham memo requesting that another agency take action, knowing that the recipient agency will use the request to hide the real reason for its contemplated action? Earlier this year, the D.C. Circuit answered in the affirmative. Campaign Legal Center v. […]
This post assesses the Solicitor General’s argument, in New York v. New Jersey, that Congressionally-ratified interstate compacts obligating states to ongoing obligation include an implicit right of unilateral withdrawal from the compact and assumption of a compact agency’s authority by the withdrawing state within its state boundaries. The Solicitor General’s argument ignores state practices in […]
In National Assn of Broadcasters v. FCC, No. 21-1171 (July 12, 2022), a D.C. Circuit panel invalidated an FCC rule designed to ensure that material aired by broadcasters was properly identified when coming from a foreign government. The regulation’s fatal flaw was its requirement that broadcasters check two government databased to ascertain whether the entity […]
For nearly a century, Congress has required broadcasters to identify the sponsors or providers of broadcast programming airing on their stations.[1] Implicitly such identifications should be truthful and non-deceptive. That imperative, truthful, non-deceptive identification of sources, is all the more critical to the extent that a program originates from a foreign governmental entity. Or so the […]
Quickly, which of the following two actions most burdens the practice of religion: (a) Preventing a football coach from praying at the 50-yard line after a game? (b) Allowing a copper mine to take over one of the most sacred sites of a religion? The intuitive answer is surely the latter. But the actual answer […]
The National Marine Fisheries Service (“NMFS”) published a rule requiring owner and operators of for-hire vessel operating in the Gulf of Mexico to (1) install GPS devices that constantly archived the vessel’s locations, and (2) allow federal fisheries enforcement personnel access to the information. A group of charter boat captains and owners challenged the regulation, […]
On July 21, 2020, the National Marine Fisheries Service (“NMFS”) published a rule requiring owners and operators of for-hire vessel operating in the Gulf of Mexico to submit electronic fishing reports upon their return to port “prior to removing any fish from the vessel” (or within 30 minutes if no fish had been retained). Even […]
In Inter-Cooperative Exchange v. Department of Commerce, — F.4th —, 2022 WL 2036299 (June 7, 2022), a Ninth-Circuit panel split over the proper approach to searching a government employee’s personal cell phone for records responsive to a FOIA request. As the majority irreverently described the suit: “In this case, crab fishers pull their nets from […]