Notice & Comment

Author: Andrew Hessick

Notice & Comment

Moore v. Circosta and Federalism

On Wednesday, in Moore v. Circosta, the Supreme Court denied a request for an injunction barring the implementation of a memo issued by the North Carolina State Board of Elections that extends the deadline for receiving absentee ballots in North Carolina.  Justice Gorsuch dissented, and it is on that dissent that this post focuses.  One line […]

Notice & Comment

Gundy, Nondelegation, and Criminal Law

The nondelegation doctrine says that a statute can give rulemaking power to an agency so long as the statute contains an intelligible principle directing how that power must be used. For years, the doctrine was a joke.  Courts routinely upheld laws with the slimmest of intelligible principles, and sometimes they even read intelligible principles into […]

Notice & Comment

Carissa Hessick on the Presumption of Regularity

One doctrine that often comes up in challenges to government actions is the presumption of regularity. Under the presumption, courts assume that government officials properly discharged their official duties unless there is evidence showing otherwise.  Courts have invoked it to give the government the benefit of the doubt in challenges to agency actions. If there are both […]

Notice & Comment

Changes to the Independence of Administrative Law Judges

Yesterday, President Trump issued an Executive Order exempting administrative law judges from the competitive selection process and stripping them of the removal protections provided by civil service regulations. Under the order, agency heads have much broader discretion over the hiring and firing of ALJs. The changes to the hiring process are unsurprising. This term, in […]

Notice & Comment

Interpreting Injunctions

Since Attorney General Sessions delivered his speech last week at the Federalist Society’s National Student Convention, there has been a lot of talk about nationwide injunctions—injunctions that prohibit the government from enforcing a law against anyone, as opposed to only against a particular plaintiff. While many people have talked about granting these injunctions, one thing that I […]

Notice & Comment

Chevron as a Remedial Limitation

Chevron deference, which requires courts to defer to reasonable agency interpretations of statutes that the agency administers, is a central doctrine of administrative law. Despite its importance, Chevron rests on uneasy ground. Critics have raised various legal objections to the doctrine. One is that requiring courts to defer to agency interpretations of statutes violates the […]

Notice & Comment

Consenting to Adjudication Outside the Article III Courts

A lot of Supreme Court cases involve the meaning of Article III. Most of those cases address whether the Article III courts have jurisdiction over a particular claim. But a handful of the Article III cases focuses on the converse question—whether a tribunal outside of Article III can adjudicate a claim. Article III “vest[s]” the […]

Notice & Comment

Keeping an Eye on Patchak v. Zinke

Next term, the Court will hear Patchak v. Zinke, No. 16-498. The case raises an old question about the line between the power of Congress and the power of the federal courts: The extent to which Congress can direct the outcome of a case. Patchak brought suit under the APA challenging the Department of the […]

Notice & Comment

Esquivel-Quintana and Chevron

Yesterday, the Court decided Esquivel-Quintana v. Sessions, an immigration case implicating Chevron. Under Chevron, of course, courts and agencies are bound by unambiguous statutes. But if a statute is ambiguous, courts must defer to reasonable interpretations of that statute rendered by the agency charged with interpreting that statute.   One issue underlying Chevron is identifying what […]

Notice & Comment

Standing for the New Plaintiffs in the CREW case

Back in January, a group of constitutional law scholars (working with Citizens for Responsibility and Ethics in Washington (CREW)) sued President Trump for violating the Emoluments Clause. In a previous post, I explained argued that those scholars did not have Article III standing because they had not alleged a cognizable injury in fact. Today, the […]

Notice & Comment

Abusing Discretion in Sentencing after Beckles

Yesterday, the Supreme Court decided Beckles v. United States. The case involved a challenge to the federal sentencing guidelines. Section 4B1.1 of the U.S. Sentencing Guidelines prescribes a sentencing enhancement for certain criminal defendants if the offense of conviction is a “crime of violence.”  At the time of Beckles’s conviction, the guideline defined “crime of […]

Notice & Comment

Standing and the Emoluments Clause

Today, a group of constitutional law scholars apparently plan to file a federal lawsuit alleging that President Trump is violating the Emoluments Clause because his hotels are receiving payments from foreign governments.   Although the meaning of the clause is up in the air, roughly speaking the clause prohibits federal officials from taking payments from foreign […]

Notice & Comment

Some Thoughts on Jared Kushner and the Anti-Nepotism Law

  In the past week, there has been a lot of discussion whether Jared Kushner, the son-in-law of Donald Trump, can serve as an advisor to Trump when he takes office. The concern is that hiring Kushner might violate the anti-nepotism laws. Under 5 U.S.C. § 3110(b), a “public official” cannot “appoint” or “employ” a […]

Notice & Comment

Expected Strategies for the New Administration

As the Trump administration prepares to take over, it has revealed some of the policy changes it plans to implement. These include reducing environmental restrictions, amping up enforcement of immigration rules, and deregulating businesses.  Trump’s administration will no doubt want to implement some of these changes faster than would be possible through the notice-and-comment- process.  […]