This is the first part of a two-part post. For the second part of this post, click here. Introduction On 14 February 2019, the European Parliament agreed to establish an EU-wide mechanism to screen foreign direct investment (“FDI”) on grounds of “security or public order” to protect certain sectors within the European Union (“EU”). Thus, […]

The Supreme Court recently granted certiorari in American Hospital Association v. Becerra, a case that presents a question relating to so-called Chevron deference. Chevron USA v. NRDC was a 1984 case in which the Court held that an administrative agency’s interpretation of an ambiguous statute was entitled to judicial deference. But this controversial precedent has […]

Twenty-five years ago, the Administrative Conference of the United States (ACUS) brought the technique of “direct final rulemaking” to the attention of the administrative law community. Since that time, agencies have used the technique thousands of times to adopt noncontroversial regulations on an expedited basis. But its legality depends on a creative reading of the […]

In a series of bold actions, Texas has attempted to continue where the Trump administration left off in terms of immigration enforcement. These attempts recently have included threats to build a border wall, the devotion of space in state jails to immigration violators, and the use of the arrest power against immigrants under the theory […]

June ended up being an extremely eventful month for state deference. In addition to the Mississippi Supreme Court’s long expected decision to abandon Auer like deference, the Colorado Supreme Court also issued a major decision rejecting both Brand X and Chevron like deference. Previously, while the court had not has expressly voiced its skepticism or […]

With the aid of my smart and industrious research assistant Rob Galloway, I have completed the annual list of Legislation and Regulation (Leg Reg) and Administrative Law course requirements at ABA accredited law schools. The link to the list as a publicly viewable Google doc is here. Two schools (Georgia State and Wisconsin) have added […]

In Part 1 of this two-part post, I summarized Justice Clarence Thomas’s recent call to reexamine the “functional prong” of Edmond v. U.S. (1997). Though Thomas had joined Edmond in full and cited it approvingly as recently as four years ago, Thomas’s dissent in U.S. v. Arthrex (2021) suggested that Edmond’s functional prong may lack […]

Four years ago in NLRB v. SW General (2017), Justice Clarence Thomas argued in a concurring opinion that the general counsel of the NLRB “is likely a principal officer” and that appointing an acting general counsel without Senate consent “raises grave constitutional concerns.” In that concurrence, Justice Thomas applied the test for distinguishing “principal” and […]

Much has been made about how to characterize the Supreme Court’s recently finished October 2020 term. Some have suggested it was relatively quiet, especially compared to the heavily anticipated October 2021 term, while others have highlighted potentially important decisions, such as Brnovich and TransUnion, that could fundamentally reshape the law, depending on how they are […]

This past week, the administrative law listserv—and a longer treatment, titled Fasten Your Seatbelts, The FTC Is About to Take Us on a Rollercoaster Ride, published on this blog—has had plenty to say about Chair Lina Khan and her stewardship of the FTC. What motivates me to write, however, is the surprising and surprisingly uncharitable […]

For the past year, there have been few major changes on the state deference front. That’s not to say that 2020 was completely uneventful. 2020 did see a few notable dissents, concurrences, and separate opinions critiquing deference. See Woodford v. Ins. Dep’t, 243 A.3d 60, 79 (Pa. 2020) (Donohue, J., concurring) (“When a reviewing court finds […]

The Supreme Court recently decided CIC Services v. Internal Revenue Service, 593 U.S. __ (2021). Commentators on Notice & Comment and elsewhere have already discussed this decision’s implications for the Anti-Injunction Act and challenges to federal taxes. What has apparently gone unnoticed, however, is what the Court’s decision implies for the Administrative Procedure Act and […]

In a memorandum dated May 27, 2021, John D. Trasvina, head of the Office of the Principal Legal Advisor (OPLA), the attorney arm of Immigration and Customs Enforcement (ICE), issued guidance to their attorneys regarding the interim enforcement priorities set form by ICE earlier this year. This post includes some highlights of this guidance but […]

The Freedom of Information Act (“FOIA”) provides the public with access to “records” of the Executive Branch.  It does not provide for disclosure of “information” in the abstract.  Surprisingly, however, the definition of a “record” has never been established, despite the seeming inclusion of such a definition at Section 552(f)(2)(A).  And although there is no […]