The Supreme Court recently granted certiorari in Loper Bright Enterprises v. Raimondo, a case where commercial fishers are challenging an agency’s statutory authority to issue a regulation requiring the fishers to pay the wages of inspectors on their boats. The Question Presented (“QP”) that the Court agreed to hear includes a request to overrule Chevron v. NRDC (1984). […]

Last week, Coinbase launched its first counteroffensive against the Securities Exchange Commission’s (“SEC”) aggressive enforcement posturing in the cryptoeconomy. The cryptocurrency trading platform filed a petition for writ of mandamus asking the Third Circuit to make the SEC act on its petition for rulemaking. The filing raises important questions about administrative power in several respects including agency nullification […]

The bipartisan Promoting Women in Aviation Act was introduced in the US Senate on March 30, 2023. The legislation aims to establish the Women in Aviation Advisory Committee (WIAAC) to advise the Secretary of Transportation and the Administrator of the Federal Aviation Administration (FAA) on matters related to women in the aviation industry. The WIAAC […]

Fans of Justice Neil Gorsuch have consistently celebrated his “judicial humility,” his abhorrence of inserting “personal preferences” into judicial decisions, and his “critic[ism] of judicial activism.”  The Justice himself has remarked on the “modest[y]” of the court since he joined.  (Akil Amar, who regards himself as a liberal, managed to fit “modesty” and “humility” into the […]

Last week, the Fifth Circuit issued an unpublished order in Alliance for Hippocratic Medicine v. Food and Drug Administration, partially staying the district court’s earlier order overturning the FDA’s approval of mifepristone.  Standing, as we all know, requires that the plaintiffs suffered an injury in fact that is “actual or imminent.” Standing rules can be unpredictable, but when determining whether a […]

While the “major questions doctrine” developed over a series of important cases, the Supreme Court’s express recognition of the doctrine last Term in West Virginia v. EPA has dramatically raised its profile.  Litigants are now identifying all sorts of “major questions” and claiming that the doctrine is triggered by a wide variety of government actions ranging from the EPA’s […]

I. Introduction The Food and Drug Administration (FDA) approved mifepristone for terminating pregnancy in 2000. On April 7, 2023, a Texas court issued a preliminary injunction suspending FDA approval in Alliance for Hippocratic Medicine, et al., v. U.S. Food and Drug Administration, et al. On April 12, the Fifth Circuit Court of Appeals partially overruled, allowing the […]

As readers of this blog surely know, the Consumer Financial Protection Bureau has been under sustained legal and political attack from the financial institutions it regulates since its very creation. At first, litigation side of these attacks on the Bureau’s structure failed. But with the consolidation of a solid anti-administrative-state majority, the tide has begun […]

Throughout the administrative state, laws regularly bar judicial review. In an article forthcoming in the Vanderbilt Law Review, I locate 190 statutory provisions that expressly bar judicial review over agency actions. Although review bars expressly state that judicial review is not available, litigation disputes frequently arise about how broad a review bar really is. One common dispute is […]

Silicon Valley Bank (SVB) got big financing a shiny piece of the American Dream in a political fundraising hotspot. Its shareholders, its creditors, its regulators, and the public fell victim to the worldview and technology that had made it big. It died a badly run, badly supervised specialty bank.[*] The forceful federal response to its failure […]