Does your law practice or professional focus have any connection with the activities, policies, or regulations from federal or state regulatory agencies? If yes, then consider joining the ABA Section of Administrative Law and Regulatory Practice. Why? Our section members include leading administrative law professors; Supreme Court Justices; district and circuit court judges; state court […]
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 last month’s cases. The Supreme Court’s Evolving Doctrine on “Jurisdictional Rules” Has Huge Implications for the APA Given that Article III courts have a duty to police their own […]
The American Constitution Society for Law and Policy is currently accepting submissions for its thirteenth annual Richard D. Cudahy Writing Competition on Regulatory and Administrative Law, honoring the late Judge Cudahy’s contribution to the field. The competition is open to all lawyers and law students and seeks submissions related to American regulatory or administrative law, […]
Julian Mortenson and Nicholas Bagley have posted a provocative and thoughtful new paper making the claim that there was no nondelegation doctrine of any kind at the founding. These two authors are careful as usual, and in several places they raise concerns and arguments that may require modifications to existing originalist claims about nondelegation. But […]
Medicare and Medicaid were enacted in 1965, and for more than four decades, advocates fought for universal health insurance largely without success. Then, in 2009, the first major priority of the Democratic-controlled House, 59-vote Democratic majority Senate, and Democratic President was to enact the Affordable Care Act, bringing health insurance to millions. These politicians passed […]
To Justice Breyer’s chagrin, the Court in Lucia v. SEC and Free Enterprise Fund v. PCAOB expressly declined to resolve whether the U.S. Constitution condones statutory protection from at-will removal for administrative law judges and other similarly situated agency adjudicators. These thousands of adjudicators enjoy two layers of for-cause statutory protections between them and the […]
Pursuant to the Constitution’s Article VI Supremacy Clause, federal laws and regulations preempt conflicting state laws. But may state laws be preempted when they clash with a federal policy of nonregulation? The answer to that question may well determine whether the Federal Communications Commission’s 2018 Restoring Internet Freedom Order (RIF Order) preempts state net neutrality […]
On December 7, the Department of Justice held an unusual “summit” on reforming the Administrative Procedure Act in its Great Hall. The keynote speaker was Deputy Attorney General Jeffrey A. Rosen. The major theme of its three panels was that it was past time for the APA to be “modernized.” Various suggestions were heard ranging […]
On Friday, November 15, 2019, at the section’s annual fall meeting, I was pleased to present the ABA Administrative Law Section’s Award for the Best Scholarship in the field published in 2018 (which the 2019 award recognizes). The section’s award committee, which I chair, includes Bill Araiza, Jack Beermann, Jonathan Cedarbaum, Neal Devins, and Emily […]
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 last month’s cases. Altera Part I: IRS Becoming Less Exceptional in Admin Law “IRS exceptionalism” continues its slow bleed. For reasons that escape me, the White House and federal […]
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On October 31, 2019, the Federal Circuit in Arthrex, Inc. v. Smith & Nephew, Inc., No. 2018-2140, ruled that Administrative Patent Judges (APJs) are “principal officers” of the United States under the Appointments Clause in Article II, section 2, clause 2 of the Constitution. Because the appointments of APJs do not comply with the Constitution, their rulings […]
Professor Zachary Price recently posted an essay arguing that a Trump Administration loss in the DACA repeal case would have “long-term implications . . . quite adverse to progressive goals.” Given his record of thoughtful scholarly articles about the legal and policy issues surrounding the deliberate underenforcement of law, it is not surprising that Professor Price continues […]
Attention all administrative law nerds: Code Red Cert-Alert! On Friday, the Cato Institute and NFIB filed an amicus brief on behalf of petitioners seeking Supreme Court review of the Ninth Circuit’s April order in Baldwin v. United States. Of course, the odds of the Court exercising its appellate jurisdiction are low for any given controversy; […]
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 last month’s cases. Chevron Step Negative Infinity Most judicial opinions follow a template. They start with an introduction, then move on to a section that lays out the “standard […]