Notice & Comment

Notice & Comment

Notice & Comment

Does the Seventh Amendment Limit State Administrative Adjudication?, by Keith Bradley

The Supreme Court’s recent decision in SEC v. Jarkesy seems destined to upend much federal regulatory enforcement.  A further potential consequence may be coming for state enforcement.  Whether state regulatory programs are vulnerable to a Jarkesy limitation depends on whether Jarkesy depends solely on the Seventh Amendment, or is a collaboration between the Seventh Amendment and Article III. Jarkesy dealt […]

Notice & Comment

The President Has No Constitutional Power of Impoundment, by Zachary S. Price

Donald Trump thankfully survived an assassination attempt last weekend and may well win back the presidency in November.  What constitutional theories might a second Trump administration advance? Trump himself has suggested one possibility:  He has promised to assert a “Constitutional power to stop unnecessary spending through what is known as Impoundment.”  In other words, a second-term President Trump would […]

Notice & Comment

The Scope of Change: Not only Loper Bright, but Corner Post too, by Allison Zieve

Two weeks ago, the Supreme Court issued two major decisions concerning judicial review of federal agency regulations. Already, plenty of ink has been spilled praising and deriding the decisions. But to understand whether the decisions should make you gleeful or panicked, it is important to understand both their limits and their breadth. In Loper Bright Enterprises […]

Notice & Comment

Flip Flopping by the Solicitor General, by Richard J. Pierce, Jr.

Many people, including Supreme Court Justices, have expressed concern about flip flopping by the Solicitor General (SG), i.e., arguing in support of a position that is inconsistent with the position that the government took in the past. In The Solicitor General, Consistency and Credibility, forthcoming in the Notre Dame Law Review, Professors Margaret Lemos and […]

Notice & Comment

ACUS Recommendation on Senate-Confirmed Officials and Administrative Adjudication

Last month the Administrative Conference of the United States adopted an important recommendation regarding the role of Senate-confirmed officials in agency adjudication. The recommendation drew three separate statements from members of the Administrative Conference—including a concurring statement from me and Melissa Wasserman and two dissenting statements by Jennifer Dickey, John Duffy, Jenn Mascott, and Kate […]

Notice & Comment

The World Goes On:  What’s Next for the Agencies, by Andrew C. Mergen & Sommer H. Engels

Tell me about despair, yours, and I will tell you mine.Meanwhile the world goes on. – Mary Oliver October Term 2023 ended with a bang. Chevron deference is no more, a gaping hole has been carved into the APA’s statute of limitations, and the Court has once again halted an EPA regulation mid-litigation. This is, to understate matters considerably, a dreary time […]

Notice & Comment

Ad Law Reading Room: “Presidential Control and Administrative Capacity,” by Nicholas Bednar

Today’s Ad Law Reading Room entry is “Presidential Control and Administrative Capacity,” by Nicholas Bednar, which is forthcoming in the Stanford Law Review. Here is the abstract: Presidential control is the power to direct administrative capacity toward the president’s own policy objectives. Accordingly, presidential power vis-à-vis administrative policymaking has two necessary components: control and capacity. […]

Notice & Comment

Professors, Don’t Remove Chevron from Your Casebooks, by Nick Fromherz

When the Supreme Court throws out the most cited case in your field, initial reactions may range from despair to elation—strong feelings related to the merits and consequences of the decision—to a more pedestrian variety of consternation: I have to re-write my casebook!  As concerns Chevron’s demise, the shift in case-law at the very least warrants the latter form of […]

Notice & Comment

Even if the President is Immune, His Subordinates are Not, by Zachary S. Price

By immunizing Presidents against criminal liability in some circumstances, the Supreme Court’s recent decision in Trump v. United States limited one form of potential accountability for lawless presidents.  Whatever the scope of this immunity, however, the decision left in place one of the most important constraints on the American presidency:  the need to act through subordinates to carry out […]

Notice & Comment

Ninth Circuit Review-Reviewed: Assessing Five Years of Kisor v. Wilkie at CA9

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before (arguably) the “second most important court in the land.” Let’s get straight to business. FCIC Reaps Kisor Deference Congress created the Federal Crop Insurance Corporation “to improv[e] the economic stability of agriculture.” The FCIC carries out this mandate by offering reinsurance to […]

Notice & Comment

Implied Delegations After Loper, by Adrian Vermeule

Loper Bright Enterprises v. Raimondo recognizes that Congress may delegate to agencies the authority to exercise discretion in a certain domain, as I have argued. A further question, of both doctrinal and practical significance, is whether those delegations must be express, or instead can also be implied. In an excellent recent online seminar, my esteemed co-author Michael Herz […]

Notice & Comment

Sixth Circuit Review

Welcome to Sixth Circuit Reviewed! This is your monthly recap of administrative law from—as some like to call it—“America’s Court.” (Yes, people call it that. I think.)    Often overlooked in the adlaw world by the towering D.C. Circuit (and, apparently, the Ninth Circuit), the Sixth has its fair share of high-profile administrative law decisions: OSHA challenges, private nondelegation, vaccine mandates, and […]