Chevron deference—the doctrine that calls for courts to defer to reasonable agency statutory interpretations—is under siege. A majority of current Supreme Court Justices have, at one time or another, expressed concern over its domain, operation, or very existence. Two state courts have overruled their state-law equivalents. Some welcome Chevron’s demise as an antidote to an […]
The administrative law community is coming to terms with the real possibility that the nondelegation doctrine will be disinterred. For “anti-administrativists” and “administrative-skeptics,” revival of this doctrine is something of a nuclear option that could lay waste to entire government agencies, programs, and statutes. For those convinced that granting policymaking discretion to the executive […]
Cambridge University Press has just published a fascinating new volume of essays about International Law and the Cold War, edited by Matthew Craven, Sundhya Pahuja, and Gerry Simpson. This volume covers a broad array of topics, including the crucial question of how Cold War politics affected or inspired new legal instruments. Tensions between ‘East’ 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 last month’s cases. Big Doctrinal Leap on “Competitor’s Standing” Continuing with Aaron’s theme from last Friday, this month’s lead story addresses the doctrinal leap taken by the Ninth Circuit […]
Admittedly, prior to reading The President’s Budget as a Source of Agency Policy, I thought of budgetary control of an agency as a congressional tool via the appropriations process. In this article, however, Professor Eloise Pasachoff illuminates the Executive Branch’s role through Research Management Offices (RMOs), a little-studied component of the Office of Management and […]
There are currently three petitions for cert pending before the Supreme Court that seek review of the FTC’s practice, under Section 13(b) of the FTCA, of seeking monetary awards dubbed “equitable restitution” or “equitable disgorgement.” This extra-statutory practice coopts the power of a court sitting in equity to garner monetary judgments not conferred by Congress, […]
I’m delighted to announce this Call for Papers – please circulate widely – and please contact me with any questions: Yale Law School is pleased to host the fifth annual Administrative Law New Scholarship Roundtable on June 8–9, 2020, in New Haven, Connecticut. Approximately twelve authors will workshop their papers in a series of […]
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 […]