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 […]
Would LeBron James — one of the best basketball players of all time — be a good professional football player? Or, to a bit more realistic, had LeBron James never played basketball at all but instead had devoted himself to football, would he have thrived in the NFL? These are the sorts of questions that […]
The Supreme Court will hear oral arguments next week about whether the Trump Administration can unwind DACA, the Obama Administration’s policy of “Deferred Action for Childhood Arrivals.” Under the DACA program, the government invited large numbers of undocumented immigrants who arrived in the United States as young children and met other criteria to apply for […]
In Calvillo Manriquez v. DeVos, a class action lawsuit against the Department of Education and Secretary Betsy DeVos for unlawful collection of student loans, U.S. Magistrate Judge Sallie Kim on October 24 issued an order finding the defendants in civil contempt, and ordering them to pay $100,000 in sanctions, for enaging in collection activities in […]
Administrative law is generally conditioned on agency action. Notice and comment rulemaking mandates “the agency shall give interested persons an opportunity to participate in the rule making.” 5 U.S.C. § 553(c). Chevron deference contemplates judicial consideration of “an agency’s construction of the statute which it administers,” and Auer deference requires judges to consider “the agency’s […]
This short post will do two things. First, it will heap praise on Professor Parrillo’s article, Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries. This terrific and engaging work sheds valuable light on what it means, practically, for policy statements to be “practically binding.” One can reasonably hope […]
On June 18, 2019, Facebook announced its plan to create a global cryptocurrency named Libra. The social-networking giant wants to offer any person holding a smartphone with an internet connection a stable and secure way to transfer money and make payments all over the world. Libra will be built on a blockchain and backed by […]
If I had to reach a common conclusion from comparing Presidential Laws and the Missing Interpretive Theory by Professor Tara Leigh Grove and Legislating in the Shadows by Professor Christopher Walker, it would be that “all legislative powers” vested in Congress by the Constitution seem to be leaking out of that body and into the […]
Controversies over the appropriate allocations of policymaking authority between the federal and state governments are almost as old as the Republic, as the Supreme Court pointed out in a 1992 decision involving the distribution of authority over radioactive waste disposal. Yet, the disputes never seem fully resolved. Certainly that is true of environmental regulation, as […]