Before the Dellinger v. Bessent case slips too far out of mind, it’s worth recollecting that the district court granted a declaratory judgment against the President of the United States. Is that permitted? The court first quoted the core part of the federal Declaratory Judgment Act (28 U.S.C. § 2201(a)): [I]n a case of actual controversy within […]
Congress will soon be deciding whether to use the Congressional Review Act (CRA) to overturn several EPA waivers that allow California to regulate vehicle emissions. There have been two important developments since I initially posted an explainer on Legal Planet about this issue. First, two lawyers, Michael Buschbacher and Jimmy Conde, posted a lengthy piece […]
The D.C. Circuit was busy last week with emergency motions. In Dellinger v. Bessent, the district court enjoined the removal of Special Counsel Hampton Dellinger. The D.C. Circuit (Henderson, Millett, and Walker, JJ.) stayed the injunction pending appeal. As the panel explained, the stay gave “effect to the removal of appellee from his position as Special […]
Here is the February 2025 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 […]
The Duke Law Journal invites papers for its 56th Annual Administrative Law Symposium, to be held in spring 2026 at Duke University School of Law in Durham, North Carolina. Papers can be submitted through Duke Law Journal’s Scholastica portal and will be considered on a rolling basis. We are considering all pieces in the field […]
The often-fuzzy distinction between “rules” and “adjudications” jumped to the foreground recently following the Trump Administration’s submission of several EPA “waivers” of Clean Air Act preemption for state electric-vehicle mandates to lawmakers under the Congressional Review Act (“CRA”). The Biden EPA had elected to not submit these actions for review, claiming in a December 2024 […]
Marin Audubon Society v. FAA is back in the news. Last week, the D.C. Circuit returned to the case for the second time since the panel’s November 2024 judgment. For our prior coverage of the November judgment, which threatened to “upend()” fifty years of law implementing the National Environmental Policy Act (NEPA), see here. In […]
Today’s Ad Law Reading Room entry is “The Public Law of Public Utilities,” by Joshua Macey and Brian Richardson, which is forthcoming in the Yale Journal on Regulation. Here is the abstract: This Article describes the constitutional history of public utility regulation to make sense of apparent puzzles and inconsistencies in modern administrative law. First, […]
The consumer welfare standard has been the lodestar of antitrust policy for decades. Yet after the election of President Joe Biden and rise of the Neo-Brandeisian movement, the Department of Justice and the Federal Trade Commission often dismissed the consumer welfare standard and instead attempted to use antitrust to achieve other progressive societal goals such […]
Only one opinion from the D.C. Circuit last week, in Jones Lang LaSalle Americas, Inc. v. NLRB, No. 24-1079, so this will be quick. It’s a straightforward application of a narrow standard of review (substantial evidence/arbitrary and capricious). The company raised two issues about a representation election: the Board Agent (1) briefly left the ballot […]
When the Supreme Court overturned the Chevron doctrine in Loper Bright Enterprises v. Raimondo, it purported to leave intact the holdings of cases decided under Chevron. Chief Justice Roberts wrote that “we do not call into question prior cases that relied on the Chevron framework. The holdings of these cases that specific agency actions are lawful—including […]
The U.S. DOGE Service seems to be everywhere these days—at eighteen agencies and counting, according to reports. “USDS” or “DOGE” has reportedly driven many of the Trump administration’s most controversial actions, including the administration’s efforts to slash federal spending and disrupt the civil service. And yet substantial questions remain as to what, exactly, USDS is: […]
Since the Supreme Court announced the arrival of the major questions doctrine in West Virginia v. EPA in 2022, federal appellate courts have struggled to apply the doctrine’s amorphous standards with any consistency both across and within circuits. Perhaps no court better demonstrates this problem than the U.S. Court of Appeals for the Fifth Circuit. […]
In U.S. v. Arthrex, the Supreme Court in an opinion by Chief Justice Roberts held that administrative patent judges (APJs) were not inferior officers for purposes of the Appointments Clause since their decisions were not reviewable by any executive branch officer. While the result in the case may very well accord with the Constitution’s original […]
All was relatively quiet on the D. C. Circuit last week through the customary release of opinions on Friday, and then the storm hit. First, the calm. Only two decisions were released through Friday, neither of which has much significance beyond the interest of the parties. In Edward M.R. v. District of Columbia, No. 23-7143, the […]