When the Biden administration’s student debt relief plan comes before the Supreme Court next month, it could benefit from an unlikely ally: inflation.  The administration has issued its discharge plan under the HEROES Act, a statute that permits the Secretary of Education to “waive or modify” federal student loan requirements in connection with a “national emergency”—here, the Covid-19 pandemic. But […]

In a recent post, the Cato Institute’s Isaiah McKinney presented empirical findings that, over the last three years, circuit courts applied the Chevron “two-step” 84.5% of the time when reviewing agency interpretations of their enabling statutes, with 59.2% of these cases proceeding to a deferential posture at Chevron step two. McKinney contrasted Chevron’s prevalence in […]

The Supreme Court will hear oral arguments in Gonzalez v. Google next month. This is the first time the Court will consider Section 230(c)(1) of the Communications Decency Act, the central internet liability statute. The Gonzalez plaintiffs are families of victims of the Paris, Istanbul, and San Bernardino terrorist attacks. They claim that YouTube’s targeted recommendations assisted or aided in […]

Appropriations, budget, and public debt law lurk in the recesses of public law. Every now and again, in a blaze of glory and spilled ink, they emerge under the guise of a constitutional issue. Should a constitutional question arise, usually separation of powers, amid a political stalemate, then an extended shutdown or debt ceiling drama […]

On Monday, the Notre Dame Law Review hosted a terrific symposium on the history of the Administrative Procedure Act (APA). The videos of the panels and keynote are available here. For my contribution to the symposium issue, I’m attempting to sort out the various approaches to APA interpretation.  I’ve posted to SSRN a draft of […]

On Monday, the Notre Dame Law Review hosted a terrific live symposium entitled the History of the Administrative Procedure Act and Judicial Review. It was such a terrific event, and I learned a lot. The editors have posting the video recordings of the panels on the law review’s YouTube channel here. Here are the panel […]

The latest variant of the epidemic of constitutional challenges to federal administrative adjudicators was blocked by the Court of Appeals for the Federal Circuit (CAFC) when it rebuffed a series of arguments challenging the appointment of Administrative Judges (AJs) of the Merit Systems Protection Board (MSPB). McIntosh v. Department of Defense, 53 F. 4th 630 […]

On Thursday, February 8, 2023, there’s a terrific law review symposium in Washington, DC, on democratic accountability in the administrative state. Shoba Wadhia and I will be presenting our new working paper on democratic accountability and modes of regulatory policymaking. Definitely join us if you’re in DC and have time. Here are the details from […]