Notice & Comment

Notice & Comment

Notice & Comment

D.C. Circuit Review—Reviewed: When Does a Rule Become a Rule?

The D.C. Circuit has once again addressed the surprisingly vexing question of when a rule becomes a rule. National Council of Agricultural Employers v. Department of Labor involves two competing rules modifying the H-2A farmworker visa program. The Trump administration’s Department of Labor submitted a final rule to the Office of the Federal Register (OFR) on January […]

Notice & Comment

OLC Rears Its Head to Recognize an Unlimited Presidential Power to Abolish National Monuments for Any Reason, by Justin Pidot

As Jack Goldsmith observed in February, one of the “innovations” of the second Trump presidency has been to “cut down or eliminate” the legal interpretive authority of the Office of Legal Counsel (OLC) and “center that authority firmly in the White House like never before.” OLC’s culture and tradition of independent thinking, once viewed as […]

Notice & Comment

Fastened to the Statute: The Federal Circuit’s Decision in Oman Fasteners and Its Implications for the Administration’s Trade Agenda, by Kraz Greinetz

As the Federal Circuit considers the legality of President Trump’s “Liberation Day” tariffs, its under-the-radar decision in Oman Fasteners, LLC v. United States offers complications for the administration’s trade agenda. Oman Fasteners dealt with antidumping and countervailing duties, which the Department of Commerce imposes on foreign goods to combat perceived unfair trade practices. Antidumping duties […]

Notice & Comment

D.C. Circuit Review – Reviewed: Independent Judgment for Independence Day

Last week, perhaps in anticipation of Independence Day, the D.C. Circuit exercised its “independent judgment” in two administrative law cases that dodged interesting questions about Loper Bright. When Has Congress Delegated Interpretive Discretion to an Agency? Loper Bright Enterprises v. Raimondo answered one question – Chevron, nevermore? – and raised another – when has Congress […]

Notice & Comment

Universal Injunctions and the Role of the Judiciary, by Allen C. Sumrall

In a startling but unsurprising decision, the Supreme Court last Friday dramatically shrank the ability of federal judges to issue universal injunctions. In Trump v. CASA, Justice Amy Coney Barrett, writing for the six Republican appointees, concludes that universal injunctions “likely exceed the equitable authority that Congress has granted to federal courts.” For that reason, […]

Notice & Comment

“Vesting” v. “Appropriating” in the Constitution, by Shalev Gad Roisman

This blog post draws an unlikely—but potentially quite important—connection between Congress’s power to “appropriate” and the three “vesting” clauses of the Constitution. It is an axiom of separation of powers formalism that the grants of executive, legislative, and judicial powers to the three branches are “exclusive.” Exclusivity on this view is meant to convey that, […]

Notice & Comment

What Loper Bright and Statutory Stare Decisis Mean for Deregulation, by Jack Jones & Max Sarinsky

In eliminating the Chevron doctrine, Loper Bright Enterprises v. Raimondo changed the landscape of administrative law in ways that courts, litigants, and legal scholars are still sorting out a year later. Loper Bright held that courts should exercise “independent judgment” to determine the “best reading” of statutory language without deferring to agencies’ interpretations. While the […]

Notice & Comment

Ad Law Reading Room: “New Challenges for Federal Regulations: Executive Branch Responses,” by Richard Revesz

Today’s Ad Law Reading Room entry is “New Challenges for Federal Regulations: Executive Branch Responses,” by Richard L. Revesz, which is forthcoming in the NYU Law Review. Here is the abstract: Over the last decade, federal regulations have faced increasingly more challenging hurdles. The Supreme Court’s 2024 decision in Loper Bright v. Raimondo, putting an […]

Notice & Comment

What Trump v. CASA Means for the Future of Universal Relief in Administrative Law

On Friday, the Supreme Court issued a 6-3 decision in Trump v. CASA, holding that universal (or nationwide) injunctions likely exceed the equitable authority that Congress vested in courts in the Judiciary Act of 1789. Accordingly, the Court granted partial stays of the district courts’ preliminary injunctions. In the orders under review, the district courts […]

Notice & Comment

Unbound by Statute: The U.S. Senate, California’s Emissions Waivers, and the Congressional Review Act, by Greg Dotson

On June 12, 2025, President Trump signed three resolutions of disapproval in an effort to block California’s current air pollution emissions standards for cars and trucks. California and ten other states immediately filed suit in federal court, citing a number of statutory and constitutional claims in arguing that the resolutions were unlawful and asking a […]

Notice & Comment

Agency Independence and the Federal Reserve’s Regulatory Functions, by Graham Steele

In May, the Supreme Court temporarily upheld President Donald Trump’s decision to remove Democratic appointees to the National Labor Relations Board and Merit Systems Protection Board. The order in Trump v. Wilcox, issued on the Court’s emergency docket, suggests the precedent established in Humphrey’s Executor v. U.S. that appointees to multimember commissions are protected from […]

Notice & Comment

What FCC v. Consumers’ Research Means for the Future of the Nondelegation Doctrine

On Friday, the Supreme Court issued a 6-3 decision in FCC v. Consumers’ Research, rejecting a nondelegation doctrine challenge to the constitutionality of the FCC’s Universal Service Fund. Writing for the Court, Justice Kagan nicely summarizes the issues and the Court’s conclusion: The question in this case is whether the universal-service scheme—more particularly, its contribution […]