Notice & Comment

Notice & Comment

Notice & Comment

D.C. Circuit Review – Reviewed: Constitution Day

Happy (belated) Constitution Day! This is my first post for Notice and Comment, and I am grateful to the Yale Journal on Regulation and my fellow authors of the D.C. Circuit Review – Reviewed for the opportunity.  Appropriately, the Constitution plays a role in both decisions issued by the D.C. Circuit on Constitution Day.    […]

Notice & Comment

Severability, Checks & Balances, and Executive Power

When the Supreme Court holds that a particular section within a statute is invalid or unenforceable, it typically performs a severability analysis to determine whether the rest of that statute must be declared invalid or enjoined, as well.  As Justice Thomas laments in his concurrence in Murphy v. NCAA, the Court’s severability doctrine “requires judges […]

Notice & Comment

The Extrajudicial Speech of Administrative Adjudicators: New Article

The Trump Administration displayed profound disdain for long-standing policies and norms, as well as the career federal employees who often serve as their guardians.  Those career officials, formerly disparaged as “bureaucrats,” but more recently collectively cast as “the deep state,” resisted, sometimes by speaking out publicly. This pattern was particularly pronounced in the field of […]

Notice & Comment

D.C. Circuit Review – Reviewed: Version 2.0

Tomorrow is the first day of the D.C. Circuit’s new term. And today is the first day of Version 2.0 of D.C. Circuit Review – Reviewed, your weekly source of information on the nation’s “second most important court.” Between 2015 and 2020, I closely tracked the D.C. Circuit’s cases.* Over time, I learned the patterns; […]

Notice & Comment

Standing Law Is Inconsistent and Incoherent

Several scholars that I respect urged me to look at the Supreme Court’s most recent standing decisions to decide whether I agree with their belief that they signal a major change in the way the Court decides standing cases. This essay summarizes the results of my review of those decisions. I have long considered standing […]

Notice & Comment

Just Pay the Ticket!: Is Chalking Tires an Unconstitutional Search?

Many municipalities offer time-limited free parking in municipally-owned public lots.  Parking authorities enforce those time limits by having parking enforcement officers make periodic visits to the lot.  During each visit the officers chalk the tires of all cars present in the parking lot.  If any car remains when the next periodic visit occurs, the chalk […]

Notice & Comment

My Jotwell Review of Bremer on APA Adjudication

Earlier this week over at Jotwell, I reviewed Emily Bremer‘s terrific new article The Rediscovered Stages of Agency Adjudication, which is forthcoming in the Washington University Law Review. Here’s the intro to that review: A couple years ago, Melissa Wasserman and I charted the new and old worlds of formal agency adjudication. The old world, we explained, consisted of […]

Notice & Comment

“Pay[ing] Our Precedents No Respect”: Why the DACA and Remain-in-Mexico Rescissions Are Worlds Apart, by Benjamin Eidelson

Last week, in Biden v. Texas, the Supreme Court allowed a lower court to block the Biden Administration’s rescission of the Trump-era “Remain in Mexico” policy. Several commentators have suggested that this was the logical consequence of last year’s decision blocking Trump’s own rescission of the Obama-era policy of “Deferred Action for Childhood Arrivals” (DACA). […]