Are we all pragmatists now? Eleven years after Justice Kagan’s famous quip, there may be a “realignment,” or, perhaps, an “alignment” between textualists and non-textualists. At least, that’s what Richard Re recently argued. In a characteristically insightful blog, Re takes note of a recent article by Alana Frederick and Judge Kevin Newsom—two card-carrying textualists. They […]
In a variety of cases, Justice Neil Gorsuch has stated that government regulation of private conduct should be difficult to adopt and to sustain in court challenges because it infringes on the liberty of the regulated actor. His writings typically frame regulatory questions as a conflict between individual liberty and overbearing government agencies. This theme […]
David Doniger is an old friend and a skilled advocate, and his account of the Clean Power Plan litigation is characteristically well written. But having been inside the federal government during this period, I have a somewhat different perspective — one that complicates the narrative that the Supreme Court’s intervention was simply a conservative majority […]
Last summer, the Department of Housing and Urban Development (HUD) received a PowerPoint presentation introducing an Artificial Intelligence (AI) tool: SweetREX, named after its creator, a third-year undergraduate in economics. Consistent with the Trump administration’s stated goal of eliminating 50 percent of all federal rules by the first anniversary of President Trump’s inauguration, Elon Musk’s […]
In Loper Bright Enterprises v. Raimondo, the Supreme Court overturned the highly deferential Chevron standard, which instructed courts to defer to agency interpretations of the statutes they administer, including on complex scientific or technical questions arising therein. Loper Bright overruled that forty-year-old landmark case, leading commentators to predict a rush of litigation challenging health-related regulations […]
Learning Resources v. Trump was a big deal. The Supreme Court held the President could not rely on an emergency statute, the International Emergency Economic Powers Act (IEEPA), to impose his universal tariffs or any tariffs at all. The Court’s rebuke of the President on the eve of the State of the Union address had […]
In Loper Bright, the Supreme Court repudiated Chevron’s across-the-board presumption that statutory ambiguities should be treated as implied delegations of discretion to agencies. But Loper Bright did not repudiate the possibility that a court might properly find implied delegation in some cases. Although Loper Bright declared that “statutes, no matter how impenetrable, do—in fact, must—have […]
The Trump administration’s fiscal year 2027 budget proposal to require that compounding pharmacies disclose prominently that their products have never been evaluated by the Food and Drug Administration (FDA) is long overdue; this is a reasonable requirement that advances consumer protection. Unfortunately, the administration couples this sensible proposal to increase transparency with a broader effort […]
New attention is being paid to the Environmental Protection Agency’s Clean Power Plan after the New York Times published memos revealing the Supreme Court’s hurried deliberations before blocking its implementation. The Clean Power Plan, a regulation intended to cut power plants’ climate-changing carbon pollution, never went into effect. Yet it has the distinction of coming […]
The Trump administration has generally favored reducing environmental regulations. Yet on April 2, 2026, the Environmental Protection Agency (EPA) and the Department of Health and Human Services (HHS) made coordinated announcements signaling that microplastics—tiny plastic particles found in everything from tap water to human blood—would receive new federal attention. EPA moved to designate microplastics a […]
On December 18th, 2025, the U.S. Department of Health and Human Services (HHS) launched a multi-pronged, administrative attack on gender affirming care (GAC) for pediatric patients. The Department’s goal is straightforward: to use its vast rulemaking authorities to ban the practice nationwide. The Supreme Court holding in U.S. v. Skrmetti and the recent tenor of […]
On March 31, 2026, the “God Squad” convened for the first time in more than 30 years. The Endangered Species Act (ESA) prohibits federal actions that could jeopardize the continued existence of an endangered or threatened species, but this group—the Endangered Species Committee—has the power to exempt activities from that requirement. In the span of […]
This post is one half of a two-part series. Click here to view the post on Loper Bright and the Future of the Republican Coalition. The Supreme Court’s decision to eliminate Chevron deference in Loper Bright Enterprises v. Raimondo was widely seen as a setback for pro-regulatory politics. As Justice Elena Kagan argued in dissent, […]
The U.S. Supreme Court recently heard oral argument in Trump v. Barbara, a case addressing whether the President can end birthright citizenship by executive action. This issue has fostered considerable debate in recent years. While the majority of legal scholars believe birthright citizenship is available to all, a vocal minority of conservative legal scholars believe […]
In response to the U.S. Supreme Court’s 2024 decision in Securities and Exchange Commission v. Jarkesy, a NYU Law Professor wrote in The Atlantic, “Jarkesy continues the Court’s attack on the federal government’s capacity to do many of its most basic jobs.” This captured the sentiment among many who felt that this decision, which affirmed […]