I’ve never been a fan of Chevron. In particular, I didn’t like the game-playing around step one or all the confusion about step zero or step two. Mostly I disliked the rigidity of Chevron. Assuming textual ambiguity of the statute, deference to an agency’s interpretation is sometimes warranted, sometimes not. As a result, I prefer the Skidmore approach which grants weight to the […]
In the first week of July, the D.C. Circuit issued five administrative-law opinions. First, in Evergreen Shipping Agency (America) Corp. v. Federal Maritime Commission, the court vacated an order that involved late fees for borrowed shipping containers. In April 2020, an ocean carrier (Evergreen) gave several loaded shipping containers to a trucking company (TCW) at […]
In November 2022, Attorney General Merrick Garland appointed Jack Smith as a special counsel to investigate former President Donald Trump’s attempts to stay in power after the 2020 election. Smith is currently prosecuting Trump in two separate cases, one in Washington, D.C., and the other in Florida. But the Florida prosecution was recently upended by Judge Aileen […]
Statutory mandates to establish minimum thresholds for hazards that pose an unquantifiable risk of harm put regulators in a bind. And the Supreme Court’s administrative law decisions this term have exacerbated the problem. Consider, for example, the FDA’s current struggle to regulate agricultural water quality. Fresh produce, once considered the healthiest of foods, has become a major […]
Chevron is dead, however deference may very well be alive. The majority in Loper Bright Enterprises v. Raimondo articulated no intelligible principle of deference other than tacit acknowledgement of Skidmore deference and potentially laying the path for de novo review. Nonetheless, some scholars have acknowledged that lower courts may function in fundamentally similar ways when […]
From the website of the Administrative Conference of the United States: The Administrative Conference of the United States (ACUS) is pleased to announce a public forum, Recent Administrative Law Developments in the Supreme Court: What’s Next for Agencies? Across four virtual panels beginning next Tuesday, July 30, ACUS members and researchers will discuss the significance of recent Supreme Court […]
An internal rule of the D.C. Circuit encourages the circulation among the panel of all opinions for the previous term by August 15 of each year. Which means that July and early August can be stressful times in chambers. They certainly were in mine because, try as I might, I never mastered the skill of […]
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 […]
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 […]
Pacific Legal Foundation and the Georgetown Journal of Law & Public Policy seek papers for a symposium titled “The Future of Agency Adjudication after SEC v. Jarkesy” to be held in Washington, DC in winter 2025. Details from the announcement are excerpted below.
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 […]
The D.C. Circuit issued ten opinions last week, nine of which involved administrative law. We have three FERC opinions, two NLRB opinions, and one each about FCC, FDA, FEC, and DHS. Buckle your seatbelts, it’s going to be a long post. Beginning with the FERC cases: In Shell Energy North America v. FERC, the D.C. […]
Here is the June 2024 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. Thanks to my terrific research assistant Neena Menon for helping put together this monthly post. I’ll report back in the August with the next edition.
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 […]
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 […]