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 […]
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 […]
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. April Was the Cruelest Month (for Law’s Abnegation) Does law’s arc bend steadily toward deference? Or does law invariably bend the knee to value preferences? These questions animate this section. In late […]
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 […]