In a tag-on measure to highly anticipated and deeply controversial new regulations regarding how educational institutions must respond to sexual harassment and assault under Title IX, the Department of Education (DOE) included what it terms a clarification of the rules regarding religious exemption to Title IX.  Specifically, the tag-on measure modifies 34 CFR § 106.12(b) to state that an educational institution controlled by […]

I’ve engaged in some deviant behavior. I did something you aren’t supposed to do—with someone else or alone. At least if you’re an academic. I’ve written a purely doctrinal article. And I’m not sorry. My latest article, invited for the George Washington Law Review’s Annual Review of Administrative Law, considers—well, the title says it all—How […]

Section 706 of the APA states that “court[s] shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” Is Chevron v. NRDC, 467 U.S. 836 (1984), inconsistent with the text of the Administrative Procedure Act, as originally understood? I used […]

I have just uploaded to SSRN a draft of a forthcoming article I have coauthored with Kristen M. Renberg entitled The Paradoxical Impact of Scalia’s Campaign Against Legislative History. As many readers of this blog will know, in the mid-1980s Judge and then Justice Scalia advocated forcefully against the use of legislative history in statutory […]

The administrative state has often been an engine of racial inequality. It is true that federal agencies have played key roles in implementing civil rights legislation and have sometimes attempted to dismantle entrenched racial disparities. But long before the enactment of modern civil rights laws—and extending long afterward—administrative agencies have helped mark people as racially […]

I don’t need to convince the readers of these pages of the widespread belief that federal administrators are appointed, not elected. Nevertheless. Ruling that “double-for-cause” removal is unconstitutional, Chief Justice Roberts explained that the President must have control over administrators because people vote for the President, but “people do not vote for ‘Officers of the […]

In the middle decades of the 20th century, government officials broadened access to the courts, placing public law more at the center of traditionally private disputes. They professionalized and regularized criminal justice, which previously had been a somewhat, if not significantly, privatized domain. They expanded and intensified industrial and financial regulation and enacted laws and […]

It has been good to read Notice and Comment’s symposium on racism in administrative power. Questions of prejudice and discrimination have long been left at the margins of the academic study of such power, and the symposium is a gratifying signal that such concerns are at last being accepted as more central. Of course, some of us have been […]

Although scholars may not be able to see each other at conferences or other events for the foreseeable future, they can still maintain some virtual connection. The Association of American Law Schools (AALS) Section on Administrative Law continues its initiative: “Meet a Member.” The section will introduce our members from time to time, and it […]

The Tenth Circuit just granted rehearing en banc in the case of Aposhian v. Barr, a challenge to the Trump Administration’s bump stock regulation promulgated in response to the 2017 mass shooting in Las Vegas. The court has asked counsel to answer five specific questions in the briefs, including multiple fascinating inquiries related to the doctrine of Chevron deference. Courts review agency […]

Although scholars may not be able to see each other at conferences or other events for the foreseeable future, they can still maintain some virtual connection. The Association of American Law Schools (AALS) Section on Administrative Law continues its initiative: “Meet a Member.” The section will introduce our members from time to time, and it […]

Shortly after the Supreme Court decided Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (No. 19-431), I observed in a post that the majority “repeatedly lays out the case for why the ACA lacked an intelligible principle in delegating to a sub-agency (HRSA) what it was that health plans had to […]

In his comprehensive work, A History of American Law, Lawrence M. Friedman identifies the roots of the modern welfare system in the poor laws of the colonies.[1] Descended from laws of Elizabethan England with the same label, colonial law established a system of “discriminating against the unfortunate stranger.”[2] New England towns would “warn out” new arrivals to disclaim […]