In the days since the U.S. Supreme Court handed down its decision in Bostock v. Clayton County, many have heralded the fact that all three of the opinions issued in the case—the majority plus two dissents—took a textualist approach to interpreting Title VII. As a statutory interpretation teacher and scholar, I find this celebration curious. […]
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. When Trump Is Gone, Will CA9 Start Abnegating? If you’re an anti-administrativist, it’s been a great four years in CA9. During the Trump-era, the Ninth Circuit filled the Federal Reporter with orders […]
Following President Trump’s removal of several inspectors general over the past several months, various members of Congress have introduced legislation to protect the independence of those offices. However well-intentioned these reforms are (I won’t opine on their merits), some may run afoul of the double for-cause removal issue in Free Enterprise Fund v. PCAOB. Inspectors […]
Given judicial skepticism toward relying on accommodation as a framework for evaluating interbranch information disputes, the federal courts have an opportunity to reevaluate these disputes by grounding them in constitutional and statutory text. As noted in Part I, Congress, in formalizing its committees, based its Executive branch review authority as a function of congressional rules. Only […]
In advance of next month’s annual ABA Administrative Law Conference, Chris Walker, Matt Wiener, and I have been tracking developments in administrative adjudication so far this year. Chris and Matt will present our research during the Conference’s Developments in Administrative Law program on November 20. By way of a preview, I’ll share a few of […]
Introduction The thesis of our symposium contribution, which builds on our prior scholarship critiquing the methodologies used in centralized regulatory review, is that agency reliance on fully quantitative cost-benefit analysis (CBA) to set regulatory limits on risk tends to generate racially biased outcomes in many areas of risk regulation. This worrisome pattern is present in—but […]
Later this week, I will be part of a panel at the Ohio State Bar Association’s administrative law seminar. And you would think that an Ohio State Supreme Court Justice would be able to articulate Ohio’s doctrine on administrative law deference. But I am not sure I will be able to. It’s not that I […]
Previously we blogged here (crossposted at Procedurally Taxing) about the government’s May 14 brief in opposition to the taxpayer’s petition for certiorari in Altera v. Commissioner. On June 1, Altera replied to the government’s brief, as explained here by Chris Walker. The case has been distributed for a Supreme Court conference later in June. The […]
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. CA9 Chooses Wrong Controversy to Grow Judicial Review of President’s Statutory Powers Courts must set aside agency action that is unreasonable. But when reviewing the president’s statutory powers, courts don’t check […]
On April 27, 2020, in the companion cases of Trump et al. v. Mazars USA, LLP et al. and Trump et al. v. Deutsche Bank AG, et al. (for simplicity “Mazars”), the Supreme Court requested the Office of Solicitor General and the parties brief “whether the political question doctrine or related justiciability principles bear on the Court’s adjudication of […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Last month, I was off studying for the bar, which I ultimately didn’t take because I exercised an 11th hour diploma privilege. Let’s get straight to business. Census Case, Part 1: Final Agency Action? Department of Commerce v. […]
I was pleased to be invited to write the Foreword for the Fiftieth Anniversary Issue of the Duke Law Journal’s annual Administrative Law Symposium. Congratulations to the DLJ are certainly in order for initiating and sustaining this annual volume which long has been one of the most prestigious – if not the most prestigious – […]
Each day of the COVID crisis we see unprecedented administrative action to respond to the pandemic. At the same time, litigants continue to ask courts to consider whether administrative agencies have exceeded their authority, sometimes relying on claims of deficient process. One such case is Altera v. Commissioner, in which the taxpayer filed a cert petition that asks […]
With Justice Ruth Bader Ginsburg’s passing, many pundits claim, rather cavalierly, that her replacement on the Supreme Court—if President Trump’s nominee is confirmed—almost certainly will vote in a way that will mean the end of the modern administrative state as we know it. Or at least that it will mean a dramatic decrease in its […]
On May 12, 2020, the Supreme Court heard argument in the consolidated cases of Trump v. Mazars LLP and Trump v. Deutsche Bank,[1] which concern whether standing committees of Congress have constitutional and statutory authority to enforce subpoenas against private corporations in order to obtain non-government records belonging to the President. From the perspectives of the congressional plaintiffs and the […]