The proliferation of artificial intelligence has raised urgent questions about how the government should regulate and utilize this transformative technology. Two recent White House documents speak directly to these questions. The first is a November 2020 memorandum from the Office of Management and Budget (OMB), which provides formal guidance to federal agencies about “regulatory and […]
The latest decision from Acting Attorney General Rosen in Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021) evidences, in many ways, what has been wrong about asylum adjudication under the current outgoing administration. I want to focus here on one specific strand of that wrongness: the “complete helplessness” standard as an interpretation of the […]
Introduction Employment as a federal-government attorney offers a lot to desire. The government generally does not require the high hours of big law and provides high levels of responsibility. This article summarizes a recent panel at the Section of Administrative Law’s annual conference, where I explained the hiring process for attorney positions with the federal […]
Here is the December 2020 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 Funk. This is the final edition for 2020, which has been a challenging year no doubt for so many scholars of administrative law and regulatory practice. […]
The “midnight rules” phenomenon is well known and well-studied. Every presidential administration issues a disproportionately large number of rules in its final year. Midnight rules issued by the Trump administration present unusual challenges for the Biden administration, however. Virtually all of the hundreds of midnight rules issued by the Trump administration announce and implement policies […]
The Duke Law Journal hosts an annual symposium on administrative law. Kristin Hickman and I were invited to helped organize this year’s event, which will be held on February 5, 2021. The theme is the Future of Chevron Deference. Because of Covid, the symposium will be held via Zoom — and is open to anyone […]
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. Preliminary Panels: Politics by Other Means? In normal times, injunctive relief is an “extraordinary remedy.” Over the last four years, by contrast, such relief became routine in the Ninth Circuit. While […]
Last week, Chris Walker noted that the George Mason Law Review is hosting a symposium to recognize the Administrative Procedure Act’s 75th anniversary. Like Chris, I’ve also prepared a short essay about agency adjudication. My contribution to the symposium — entitled Three Wrong Turns in Agency Adjudication — explores why agency adjudication is more controversial than […]
The Trump Administration has effectuated a number of controversial health policy changes by approving state “waiver” requests in Medicaid and the Affordable Care Act. The Biden Administration can seek to undo these waivers, but the process for doing so may be legally fraught, as states could seek to challenge any waiver revocation or amendment in […]
T’was the season of gift-giving and on December 9, outgoing EPA Administrator Andrew Wheeler delivered a parting gift for his successor in the form of a new regulation: Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process. The new Rule is offered as a simple housekeeping measure designed […]
Last August, the U.S. Supreme Court appointed me as amicus curiae to brief and argue in defense of the constitutionality of the Federal Housing Finance Agency in Collins v. Mnuchin. I filed my brief in October and argued the case last month. I’m just now catching up. I’ve always dreamed about arguing in the Supreme […]
This year the Administrative Procedure Act (APA) celebrates its seventy-fifth anniversary this year, and the George Mason Law Review has organized a terrific symposium on the subject. I’ve posted to SSRN a draft of my contribution to the symposium, entitled The Lost World of the Administrative Procedure Act: A Literature Review (yes, inspired by one […]
As I first noted on the blog six years ago, the Administrative Law Section of JOTWELL—The Journal of Things We Like (Lots)—is a terrific resource for administrative law practitioners and scholars. JOTWELL’s Administrative Law Section publishes monthly a short review of a current piece of administrative law scholarship, usually authored by one of our contributing editors who are all leading […]
President Trump just narrowly avoided a potential, third government shutdown during his presidency. As such, now might be a good time to examine the still ongoing dispute between Congress and President Trump regarding the legality of the Trump administration’s actions during the most recent government shutdown. Specifically, since the most recent shutdown in fiscal year […]
Last week, by a complaint captioned Smith & Wesson v. Grewal, the firearms manufacturer sued New Jersey’s Attorney General in federal court to contest an administrative subpoena regarding its advertising practices.[1] Smith & Wesson sought to enjoin (1) the Attorney General from seeking to enforce the subpoena, and (2) the New Jersey state courts from […]