Conservative legal thought has always been attracted to formalisms, and there is nothing inherently wrong with that. Formalism can be a useful and appropriate tool. Formalism can have a logic and even an elegance to it, as in Chief Justice Burger’s insistence in Chadha on fidelity to the constitution’s “finely wrought and exhaustively considered procedures” […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. Border Wall Panel Makes Doctrinal Hash of APA Review One of the 1946 APA’s achievements was to simplify suits against the government. To this end, the Act provides a waiver of […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of arguably “the second most important court in the land.” Today’s post marks the second anniversary of this series. Let’s get straight to business. CA9’s En Banc Process Is Broken . . . A major purpose of en banc proceedings is to bring uniformity to appellate law. It is somewhat ironic, therefore, that the Ninth […]
Barring a sweep of the Georgia Senate runoff elections, the Biden Administration will have to work with a divided Congress for at least two years. That reality makes it unlikely that the incoming administration can press an immigration policy agenda through legislative means. Rather, as with the Obama Administration before it, the Biden Administration will […]
Shortly before Thanksgiving, the Federal Communications Commission (FCC) released a joint memo from its Office of Economics and Analytics (OEA) and Office of General Counsel (OGC) titled “Legal Framework and Considerations for Regulatory Impact Analysis.” The memo marks a significant milestone in the FCC’s ongoing initiative to encourage objective economic analysis and ensure that decision-makers […]
In today’s opinion in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (No. 19-431), consolidated with a related case, the U.S. Supreme Court upheld regulations exempting employers from the contraceptive mandate at issue in Hobby Lobby. In short, a 7-2 majority (Justices Kagan and Breyer only concurred in the judgment) held […]
The Senate promptly began a lame duck session after voters had clearly named Joe Biden as President yet seemingly returned a GOP upper chamber majority. These elections followed a number of years in which President Donald Trump and the Republican chamber majority have appointed three extremely conservative, able, young Supreme Court Justices, fifty-three similar appellate […]
In support of a few different projects, I recently asked my summer research assistant to do a comprehensive review of Legislation and Regulation and Administrative Law course requirements at ABA accredited law schools in the United States. The completed list (download here) updates one most recently compiled by Professor Ed Richards at LSU Law School. […]
There is a reading of the Chief Justice’s opinion in the DACA decision that gives us a roadmap to a possible future for DACA, and not merely a justification for striking down its rescission. When the Supreme Court denied the government’s attempt to rescind the DACA program, 5-4, on June 18, 2020, it did much […]
Administrative law is full of court-made doctrines created to ensure the proper functioning of the administrative state but which are frequently invoked by political actors as they use the courts to accomplish their legislative and regulatory policy goals that they failed to enact—or prevent being enacted. Courts should wield their power modestly by respecting Congress’s […]
We thought you might like to learn more about members in the ABA Administrative Law & Regulatory Practice Section, so we have restarted our Section Member Spotlight Series. Prior posts in this series can be found here, on the Section’s legacy Notice and Comment blog that merged with the Yale Journal on Regulation‘s blog in 2015. The third […]
The global pandemic has certainly impacted regulation all around the world. Travel restrictions, social distancing measures, and economic policies are only some examples of regulatory responses that can be observed at the various governance levels. Drug regulation, more specifically, has been particularly controversial regarding medicaments that could allegedly be used in the treatment of COVID-19. […]
Every President since Jimmy Carter has called on agencies to make retrospective reviews of their regulations. President Clinton’s Executive Order 12866 required agencies to create a program of periodic review of existing significant regulations. More recently both Presidents Obama in E.O. 13563 and Trump in E.O. 13771 likewise have required agencies to engage in retrospective […]
In today’s government, presidents are the primary policymakers, due to their management of the administrative state. On January 20th, therefore, rules affecting almost every aspect of American life will pivot 180 degrees, as the White House changes hands from a Republican to a Democrat administration. Consider the current whipsaw in our nation’s capital. The Trump administration is […]
Last week, the Supreme Court handed down an administrative law blockbuster in Department of Homeland Security v. Regents of the University of California (DHS v. Regents). Below, I add my thoughts to those already posted by Aaron Nielson, Chris Walker, Daniel Deacon, and Anya Bernstein. Immediate Doctrinal Impact: The Rise of Reliance Interests In Admin Law 101, every student […]