Happy Holidays! I am excited to announce that my colleague Mikaela (Schulz) Milligan are joining forces with Shane Pennington to bring you a (somewhat) regular column about admin and regulatory cases in the Fifth Circuit. While I have written for Notice and Comment as a Guest Columnist a few times, this post is my first […]
The scope of federal environmental reviews is at stake when the Supreme Court decides the just-argued case Seven County Infrastructure Coalition v. Eagle County. Under the National Environmental Policy Act (NEPA), agencies must analyze the environmental impacts of actions they fund, authorize, or carry out. Those impacts may include both direct impacts from a project as […]
Over the past several years, the conservative legal movement and corporate interests have enjoyed one administrative law victory after another. Admirers of the administrative state have watched in general dismay as regulators’ ability to protect the public health, the environment, and worker safety and organizing rights has dwindled. Despite their chagrin over these developments, progressives […]
That’s the sound of a major opinion from the D.C. Circuit. Last week, in TikTok Inc. v. Garland, the Court of Appeals held that the Foreign Adversary Controlled Applications Act’s provisions about the TikTok platform do not violate the U.S. Constitution. The First Amendment issue got the most treatment. Judge Ginsburg, who wrote the majority […]
With apologies for the delay in between postings, we’re back! Today’s Ad Law Reading Room entry is “The Great Unsettling: Administrative Governance After Loper Bright,” by Cary Coglianese and Daniel Walters, which is forthcoming in the Administrative Law Review. Here is the abstract: “Chevron is overruled.” These three words surely captured more attention than any […]
I’ve got a new piece in the Atlantic about the soon-to-be Department of Government Efficiency. Musk and Ramaswamy’s claims depend much more on the finer points of administrative law than I would’ve expected! I thought about mental models when Elon Musk and Vivek Ramaswamy released an op-ed in The Wall Street Journal making their first major statement about the […]
As Chris Walker has explained, he and Mike Kagan recently filed this amicus brief urging the Ninth Circuit to rehear en banc a case that involves a question of exceptional importance: how to reconcile Skidmore “respect” for an agency’s interpretation with the central holding of Loper Bright. The amicus brief argues that, in “the guise of giving Skidmore ‘respect’ to a precedential statutory-interpretation decision […]
Unsurprisingly, the D.C. Circuit did not issue any opinions last week (Thanksgiving week). Indeed, the whole month of November was light on opinions, with only two issued, though both were important cases. One was about the power of FINRA (and, by extension, other private regulatory entities), though as my fellow D.C. Circuit Review blogger described, […]
In July, the Fifth Circuit ruled in Nuclear Regulatory Commission v. Texas that the Nuclear Regulatory Commission (NRC) does not have the legal authority to issue licenses for private companies to store spent nuclear fuel at locations away from reactors. The court’s decision rests in part on a cursory and strained application of the major questions doctrine. […]
It’s the last day of November, and I’m just barely getting this getting the October post up here. It’s been a busy semester, though much to be grateful for. Here is the October 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 […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” This month, we tackle Nebraska v. Su, in which a split three-judge panel sided with the challengers against President Biden’s $15 minimum wage mandate for federal contractors. Besides engendering a direct circuit split, […]
Last Friday, the D.C. Circuit issued its decision in Alpine Securities Corp. v. FINRA, No. 23-5129, a closely-watched case about the authority of the Financial Industry Regulatory Authority (“FINRA”), a private corporation that regulates and oversees large parts of the securities industry. The case raised significant questions about whether FINRA exercises too much executive authority […]
As I mentioned in my preliminary take on the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, the Court overruled Chevron deference but seemed to preserve some sort of Skidmore “weight” or “respect” while carefully refusing to call it judicial “deference.” As I noted in that post, “[i]t will be fascinating to see how […]
The Pacific Legal Foundation (where I work) has issued a call for papers for its upcoming research roundtable on “Rulemaking by Adjudication.” The deadline for proposal submissions is January 10th. Here is an excerpt from the description (full version available at the PLF website):
We appreciate receiving attention, even if critical, from one of America’s most powerful conservative organizations. Americans for Prosperity (AFP), a libertarian and fiscally conservative advocacy group, has been widely recognized as one of the most influential conservative organizations in American politics. While we appreciate the attention Kevin Schmidt and Thomas Kimbrell of AFP have given […]