In West Virginia v. EPA, the Supreme Court announced the arrival of the major questions doctrine (MQD), or the principle that agencies can’t turn old laws into new laws through expansive statutory interpretation. It is probably the most important doctrinal development in administrative law since Chevron v. NRDC. In the FAQ below, we try to […]
Within days of taking office, President Biden made a historic commitment that saw 40 percent of the overall benefits of certain federal investments flow to disadvantaged communities. The Justice40 Initiative attaches federal funding to covered programs investing in climate change, clean energy, energy efficiency, and training and workforce development, among other priorities. Since the release […]
*This is the seventh post in a symposium on Jed Stiglitz’s “The Reasoning State.” For other posts in the series, click here. Over the last month or so, it has been such a thrill to host two book symposia here at the blog—the first one on Peter Shane’s Democracy’s Chief Executive and now this one on […]
We are delighted to announce that the winner of the AALS Section on Administrative Law’s Emerging Scholar Award for 2023 is Professor Emily Bremer, for her article The Rediscovered Stages of Agency Adjudication, 99 Wash. U. L. Rev. 377 (2021). Congratulations to Professor Bremer on this accomplishment! In addition, Professor Noah Rosenblum received an Honorable Mention for his paper, The Antifascist Roots of Presidential […]
Can an agency properly invoke the deliberative process privilege to shield internal deliberations over a sham memo requesting that another agency take action, knowing that the recipient agency will use the request to hide the real reason for its contemplated action? Earlier this year, the D.C. Circuit answered in the affirmative. Campaign Legal Center v. […]
In one of the Consumer Financial Protection Bureau’s first strategic plans, the then-new agency highlighted Congress’s decision to vest it with a completely independent source of revenue: “providing the CFPB with funding outside of the congressional appropriations process,” Congress had “ensure[d] full independence” for the agency. The agency’s declaration of independence from future congressional appropriations […]
Can an agency properly invoke the deliberative process privilege to shield internal deliberations over a sham memo requesting that another agency take action, knowing that the recipient agency will use the request to hide the real reason for its contemplated action? Earlier this year, the D.C. Circuit answered in the affirmative. Campaign Legal Center v. […]
For this holiday week, there was one item on the menu at the D.C. Circuit: the extraordinary remedy of mandamus. The EPA’s violation of law, it turned out, was clearer than crystal. In re Center for Biological Diversity granted the writ to force EPA to do something that the D.C. Circuit told it to do […]
The news of Judge Laurence Silberman’s passing on October 2 spurred a wave of remembrances from colleagues, admirers, former proteges, Supreme Court justices, and many more. Some of my AEI colleagues contributed writings of their own: Robert Doar, Yuval Levin, and John Yoo. His contributions to the law—particularly in respecting and reinforcing the Constitution’s separation of powers—were immense, as many of his […]
Next week, the Supreme Court will hear arguments in United States v. Texas, a suit challenging the Biden Administration’s current immigration enforcement priorities. The Court should reject this challenge for reasons I outlined in a 2016 article. Although the administration’s policy may fall short of ideal faithful execution of federal law, its deficiencies present a […]
[Originally Published: November 7, 2022; Last Updated: November 21, 2022] Chris Walker had the great idea to assemble a bibliography on the major questions doctrine (MQD) so that we can have a one-stop shop for all things MQD. Below, I’ve listed as much of the existing MQD literature as I could get my arms around. […]
The D. C. Circuit issued only one decision this week. In Ohio Nuclear-Free Network v. Nuclear Regulatory Commission, the Court rejected a petition challenging the agency’s grant of a license to produce uranium for failure to prepare the analysis called for by the National Environmental Policy Act. In an opinion written by Judge Henderson (within […]
Yesterday (November 16, 2022), Yale Law School (YLS) announced that it would no longer be cooperating with U.S. News & World Report (USNWR) on law school rankings. Within a few hours, Harvard Law School (HLS) made the same announcement. Earlier today, Berkeley made a similar statement. My view on the merits is that the USNWR […]
*This is the sixteenth and final post in a symposium on Peter Shane’s “Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency.” For other posts in the series, click here. In Part 1 of my response to the wonderful set of fourteen essays commenting on my book, Democracy’s Chief Executive: Interpreting the […]
*This is the sixth post on a symposium on Jed Stiglitz’s “The Reasoning State.” For other posts in the series, click here. In The Reasoning State, Jed Stiglitz offers a novel argument for the necessity of the administrative state. It is not, as other scholars have argued, that Congress delegates power because it lacks the capacity […]