The D.C. Circuit has once again addressed the surprisingly vexing question of when a rule becomes a rule. National Council of Agricultural Employers v. Department of Labor involves two competing rules modifying the H-2A farmworker visa program. The Trump administration’s Department of Labor submitted a final rule to the Office of the Federal Register (OFR) on January […]
As Jack Goldsmith observed in February, one of the “innovations” of the second Trump presidency has been to “cut down or eliminate” the legal interpretive authority of the Office of Legal Counsel (OLC) and “center that authority firmly in the White House like never before.” OLC’s culture and tradition of independent thinking, once viewed as […]
As the Federal Circuit considers the legality of President Trump’s “Liberation Day” tariffs, its under-the-radar decision in Oman Fasteners, LLC v. United States offers complications for the administration’s trade agenda. Oman Fasteners dealt with antidumping and countervailing duties, which the Department of Commerce imposes on foreign goods to combat perceived unfair trade practices. Antidumping duties […]
Last week, perhaps in anticipation of Independence Day, the D.C. Circuit exercised its “independent judgment” in two administrative law cases that dodged interesting questions about Loper Bright. When Has Congress Delegated Interpretive Discretion to an Agency? Loper Bright Enterprises v. Raimondo answered one question – Chevron, nevermore? – and raised another – when has Congress […]
In Trump v. CASA, Inc., the Supreme Court held, 6 to 3, that federal courts lack the authority to issue universal injunctions if an injunction limited to the plaintiffs in that case will give those plaintiffs all the relief to which they’re entitled. The decision was based on two main conclusions: (1) “A universal injunction […]
In a startling but unsurprising decision, the Supreme Court last Friday dramatically shrank the ability of federal judges to issue universal injunctions. In Trump v. CASA, Justice Amy Coney Barrett, writing for the six Republican appointees, concludes that universal injunctions “likely exceed the equitable authority that Congress has granted to federal courts.” For that reason, […]
At the end of May, I filed an amicus curiae brief on behalf of the U.S. Chamber of Commerce in response to the en banc Federal Circuit’s request for supplemental briefing on how Loper Bright affects statutory interpretation and delegation in a pending case, United States v. Lesko. The Chamber took no position on the […]
This blog post draws an unlikely—but potentially quite important—connection between Congress’s power to “appropriate” and the three “vesting” clauses of the Constitution. It is an axiom of separation of powers formalism that the grants of executive, legislative, and judicial powers to the three branches are “exclusive.” Exclusivity on this view is meant to convey that, […]
In eliminating the Chevron doctrine, Loper Bright Enterprises v. Raimondo changed the landscape of administrative law in ways that courts, litigants, and legal scholars are still sorting out a year later. Loper Bright held that courts should exercise “independent judgment” to determine the “best reading” of statutory language without deferring to agencies’ interpretations. While the […]
Today’s Ad Law Reading Room entry is “New Challenges for Federal Regulations: Executive Branch Responses,” by Richard L. Revesz, which is forthcoming in the NYU Law Review. Here is the abstract: Over the last decade, federal regulations have faced increasingly more challenging hurdles. The Supreme Court’s 2024 decision in Loper Bright v. Raimondo, putting an […]
The D.C. Circuit issued eight opinions last week, so perhaps the rush to finish up opinions over the summer has begun. Two of the perhaps more newsworthy decisions were not in traditional admin law cases, but I’ll mention them nonetheless. In N.S. v. Dixon, No. 21-5275, the D.C. Circuit affirmed the district court’s holding that […]
On Friday, the Supreme Court issued a 6-3 decision in Trump v. CASA, holding that universal (or nationwide) injunctions likely exceed the equitable authority that Congress vested in courts in the Judiciary Act of 1789. Accordingly, the Court granted partial stays of the district courts’ preliminary injunctions. In the orders under review, the district courts […]
On June 12, 2025, President Trump signed three resolutions of disapproval in an effort to block California’s current air pollution emissions standards for cars and trucks. California and ten other states immediately filed suit in federal court, citing a number of statutory and constitutional claims in arguing that the resolutions were unlawful and asking a […]
In May, the Supreme Court temporarily upheld President Donald Trump’s decision to remove Democratic appointees to the National Labor Relations Board and Merit Systems Protection Board. The order in Trump v. Wilcox, issued on the Court’s emergency docket, suggests the precedent established in Humphrey’s Executor v. U.S. that appointees to multimember commissions are protected from […]
On Friday, the Supreme Court issued a 6-3 decision in FCC v. Consumers’ Research, rejecting a nondelegation doctrine challenge to the constitutionality of the FCC’s Universal Service Fund. Writing for the Court, Justice Kagan nicely summarizes the issues and the Court’s conclusion: The question in this case is whether the universal-service scheme—more particularly, its contribution […]