The D.C. Circuit is wrestling with some fascinating issues in Fleming v. U.S. Department of Agriculture, Docket No. 17-1246. The dispute has its roots in the Supreme Court’s 1936 opinion in Morgan v. U.S., 298 U.S. 468 (1936), often referred to as Morgan I. In the context of an adjudication with an 11,000 page record […]
The Supreme Court has long emphasized the requirement of a neutral decision maker as a critical component of the process that is due any individual who has a dispute with government.[1] The Court has also emphasized the importance of the interest an individual has at stake in identifying the procedures required by due process.[2] Yet, […]
I have learned a lot from the articles in which Nick Parrillo summarized and built on the valuable empirical study of guidance documents that he conducted for ACUS and from the many comments on Nick’s work that scholars have published in the Notice and Comment symposium on Nick’s work. I hope to add to that […]
In his January 15 opinion for a unanimous Court in New Prime v. Olveira, Justice Gorsuch stated that “words generally should be interpreted as taking their ordinary meaning at the time Congress enacted the statute.” Immediately after the Court issued that opinion Peter Strauss posted that quote on the administrative law listserve, with the suggestion […]
There has been a recent explosion of disputes in which the Supreme Court must decide when there is evidence of bad faith that is powerful enough to justify a reviewing court’s decision to allow a petitioner to rely on extra-record evidence or to develop extra-record evidence as part of the basis for review of an […]
An agency cannot issue, amend, or rescind a legislative rule without first conducting a notice and comment proceeding (N&C) unless it can find an applicable exemption from the N&C procedure. The N&C process has become so lengthy and resource-intensive that agencies are increasingly desperate to find an applicable exception. Moreover, Congress sometimes shares agencies’ frustration […]
Masterpiece Cakeshop v. Civil Rights Commission required the Supreme Court to determine the validity of an order issued by the Colorado Civil Rights Commission that required a baker to bake and sell a wedding cake to a gay couple who were exercising the right to marry that the Court conferred on them in Obergefell v. […]
Four colleagues and I drafted an amicus brief on behalf of neither party that we filed on behalf of 29 administrative law scholars in Lucia v. SEC. The brief took no position on whether Administrative Law Judges (ALJs) are employees or inferior officers. It urged the Court to issue an opinion that respects the decision […]
Over the last few years, the debate over the Supreme Court’s 1984 opinion in NRDC v. Chevron has morphed from a debate among academics to a near hysterical debate among politicians and pundits who have never read the Court’s opinion and know nothing about the dispute that led to the Court’s opinion. In an effort […]
Viewed from the perspective of a student preparing to take a final exam in administrative law, the doctrinal status quo with respect to judicial review of agency actions is a confused mess. Courts apply, and scholars debate, at least two versions of Skidmore, at least five versions of Chevron, and a constantly evolving version of […]
On November 24, Aaron Nielson wrote a blog in which he quoted White House Counsel Don McGahn as saying that the Supreme Court’s opinion in SEC v. Chenery, 332 U.S. 194 (1947) (Chenery II) announces “a doctrine that has empowered agencies . . . to announce new rules during enforcement actions without any fair notice.” […]
Empirical study of the effects of the Seminole Rock/Auer doctrine contributed to the decision of the Solicitor General (SG) to file the petition for writ of certiorari that led to the Supreme Court’s 2015 decision in Perez v. Mortgage Bankers Association and may contribute to a decision by the Supreme Court to retain some version […]