The D.C. Circuit issued only one opinion this week, and it wasn’t about admin law. (It’s about the exceptions to the “three strikes” rule under the Prison Litigation Reform Act, which bars prisoners from proceeding in forma pauperis if they have filed three frivolous lawsuits). So there isn’t much to report! The Court did hear […]
It’s no understatement to say that the Roberts Court, in only the last decade or so, has rewritten the textbooks on administrative law. And more seismic changes could be on the way. Since the long conference, the Supreme Court has twice relisted Consumers’ Research v. Consumer Product Safety Commission, a potential blockbuster that could overturn […]
In Loper Bright v. Raimondo, the Supreme Court ruled that Section 706 of the Administrative Procedure Act (APA) prohibits courts from deferring under Chevron v. NRDC to agency interpretations of statutes. What, if anything, does that holding mean for the deference courts give agency interpretations of regulations under Auer v. Robbins? On one reading of Loper Bright, Auer is no longer good law. That’s because both Auer and Chevron require courts to defer […]
Last week, the D. C. Circuit issued only one opinion from a case argued last February. In Campaign Legal Ctr. v. 45Committee, Inc., No. 23-7040, Chief Judge Srinivasan, joined by Judge Childs and Senior Judge Randolph, affirmed the district court’s dismissal of a citizen suit brought under the Federal Election Campaign Act (“FECA”). Under FECA, […]
Today’s Ad Law Reading Room entry is “Resurrecting the Trinity of Legislative Constitutionalism,” by Beau Baumann, which is forthcoming in the Yale Law Journal. Here is the abstract: For generations, scholars have called on Congress to counter the Department of Justice’s Office of Legal Counsel. They argue that a congressional OLC could safeguard Congress’s prerogatives […]
The Supreme Court decision in Loper Bright, which overruled the Chevron precedent that courts will defer to reasonable agency interpretations of law, has caused no small measure of controversy. Indeed, the decision has been the subject of political invective along party political lines, with Democrats in particular criticizing the decision. In this note we cannot hope to quell such criticisms, […]
We have three opinions from the D.C. Circuit last week, including another dispatch from the Loper Bright frontier. Let’s begin there. May FERC require a power generator to upgrade its circuit breaker so that another generator can safely connect to the regional power grid? The generator’s duties with respect to facility upgrades are governed by […]
Twenty-three years after being resurrected by Mead, Skidmore is seemingly resurgent. As commentators on this blog have noted, the Loper Bright Court’s express references to Skidmore suggest—aside from situations where the “best reading” of a statute is a delegation of interpretive authority—that Skidmore will be the primary test used to evaluate agency statutory interpretation going forward. But is Skidmore really any different than de novo review? Scholars and […]
It’s been a busy summer at the Administrative Conference of the United States (ACUS), and we have even more exciting work coming down the pipeline this fall. Read on to learn more about our recently published Model Rules of Representative Conduct, the projects coming before ACUS Committees this fall, and how to stream recordings of […]
The D.C. Circuit issued only one opinion last week: Brotherhood of Railroad Signalmen v. National Railroad Passenger Corp. In 2017, the Brotherhood of Railroad Signalmen (“the Union”) filed a complaint in federal district court arguing that Amtrak had violated their collective bargaining agreement by refusing to say that it would use Union-represented workers in a […]
Last week National Affairs journal published my essay on “The Regulatory Pendulum”. The article primarily concerns the topic of regulations that are issued and revoked as new Presidential administrations replace previous ones. It is available here.
When I began experimenting with Lexis+AI in my administrative law research course this past spring, we found it ineffective for questions beyond the C.F.R. For example, asking for a recent IRS private letter ruling kept pulling up rulings from the last century, and no prompt seemed able to come up with EEOC policy documents. Why did […]
The late summer burst of opinions appears to have ended, as the D.C. Circuit released no published opinions last week. But the court did hear oral argument in a noteworthy emergency administrative law appeal, KalshiEx LLC v. Commodity Futures Trading Commission. Kalshi seeks to offer what it calls Congressional Control Contracts. Buyers who correctly predict […]
Today’s Ad Law Reading Room entry is “Emergency Powers for Good,” by Elena Chachko and Katerina Linos, which is forthcoming in the William & Mary Law Review. Here is the abstract: Emergency powers are widely, and justly, criticized as threats to the rule of law. In the United States, forty-three declared emergencies give the executive […]
Here is the August 2024 Edition of the most-downloaded recent papers (those announced in the last 60 days) from SSRN’s U.S. Administrative Law eJournal, which is edited by Bill Funk. For more on why SSRN and this eJournal are such terrific resources for administrative law scholars and practitioners, check out my first post on the subject here. You can […]