The fate of the administrative state turns on the 1935 case Humphrey’s Executor v. United States. In Trump v. Wilcox, currently pending on the Supreme Court’s emergency docket, President Trump has asserted that the Constitution gives him the power to remove Cathy Harris of the Merit Systems Protection Board (MSPB) and Gwynne Wilcox of the […]
The battle lines in the war over the administrative state have been years in the making, and several Supreme Court decisions in 2024 made clear that the battle has been joined. One of them was the Court’s decision in Securities and Exchange Commission v. Jarkesy, in which it held that an SEC administrative proceeding in […]
Let us stipulate that the federal government is having some problems doing careful analysis generally, much less analysis as to how its actions might affect the states. I believe that my area, tax law, offers some guidance as to how states should proceed. First, some context. Over forty states with income taxes conform to federal […]
Eli Nachmany just wrote a characteristically insightful piece on the current administration’s ability to use the APA’s “good cause” exception to “accelerate repeals of unlawful agency rules.” His argument is straightforward: “The Administrative Procedure Act usually requires agencies to give public notice and allow interested parties to file comments whenever the agency wants to issue […]
Introduction July 4, 1776, declared our independence from a king. April 2025 may mark the month we hand that same power to a president. When President Trump summarily dismissed Federal Trade Commissioner Rebecca Slaughter, he did more than fire a bureaucrat—he launched a constitutional transformation. With a stroke of a pen, he swept aside decades […]
Deregulation season is in full bloom at the White House. In a recent memorandum, President Donald Trump directed agencies to employ the Administrative Procedure Act’s “good cause” exception to accelerate repeals of unlawful agency rules. After years of regulatory overreach, President Trump’s bold action will help ensure that the executive branch gets back within the […]
The Consumer Financial Protection Bureau’s Payday Lending Rule has had a rough decade. In an effort to protect consumers from abusive financial practices, the Rule prohibits lenders from continuing to attempt to withdraw a payment from an account after the second failed attempt and requires lenders to provide certain disclosures before attempting a withdrawal. CFPB […]
The Trump Administration has recently proposed replacing many workers in federal agencies with automated systems, like chatbots, that can answer questions the public has about their legal rights and obligations. For instance, instead of human customer service representatives at the Department of Education, chatbots may soon be responsible for answering questions that millions of parents […]
It is hard to believe it was less than a year ago that the Supreme Court decided what then seemed like the biggest news for administrative law in living memory: the overruling of Chevron. In ditching this forty-year-old precedent, the Court fundamentally unsettled what we have called the “administrative governance game”—that is, the complex, interdependent […]
The Freedom of Information Act (FOIA) is codified with the Administrative Procedure Act (APA) as part of Title 5 of the U.S. Code, and FOIA law is uncontroversially considered a subset of administrative law. At the same time, FOIA is unique, with its own judicial review provision and standards, as well as rather unconventional litigation […]
On March 25, the Supreme Court heard oral arguments in two related Clean Air Act cases: Oklahoma v. EPA and EPA v. Calumet Shreveport Refining LLC. The question before the Court in both cases relates to the administrative-law hot topic of venue shopping: Specifically, whether the EPA final action under review may be challenged in […]
Excessive deregulation creates harmful uncertainty for AI innovators. America needs a principles-based approach balancing clear guidelines with room for experimentation.
As Eloise Pasachoff, Zachary Price, and I describe in a forthcoming essay, the second Trump Administration is implementing unilateral executive control over federal spending—or “appropriations presidentialism”—with a breadth and magnitude that is unprecedented. Much of the recent public discourse around this appropriations presidentialism has focused on DOGE’s “efficiency” efforts and OMB Director Russ Vought’s assertion […]
Things don’t move fast in Washington—until they do. Just hours after we published our piece explaining why EPA waivers of Clean Air Act preemption are subject to congressional review under the CRA, GAO published a memo of “observations” taking the opposite view. In addition, UC Berkeley Professors Dan Farber and Eric Biber have explained in […]
For several months in 2022 and 2023, I wrote a series of blog posts called “The Major Questions Doctrine Reading List.” These posts came in the aftermath of several high-profile cases involving the MQD. My hope was that I could spotlight good scholarship and provide a shared language for talking about the MQD. For the […]