D.C. Circuit Review – Reviewed: Starting Slow
The D.C. Circuit opened 2023 with what could turn out to be the slowest week of the year. The court issued no opinions. It heard no oral arguments. And it issued only two brief unpublished judgments. I don’t begrudge the judges, clerks, and court staff their rest. But I must say it would’ve been helpful, particularly for my first week on the job, if there were at least one opinion to write about.
Instead of ending it there, however, I’ll flag a few administrative-law related developments that may be of interest to the readers:
- The Ohio Supreme Court ruled that, under Ohio law, agency interpretations of statutes should not be afforded a state analogue of Chevron deference but rather only Skidmore deference. The opinion also claims that in recent years other state courts have ruled similarly.
- On the Friday before the New Year, the EPA announced another final rule attempting to define “waters of the United States” in the Clean Water Act. In October of 2022, the Supreme Court heard oral argument in Sackett v. EPA, which asks the Court to interpret that same language.
- The FTC issued a proposed rule that would ban non-compete clauses in employment contracts.
- And there are several newly posted academic articles relating to administrative law issues, including on Chevron deference, the nondelegation doctrine, presidential prerogatives, and a theory of separation of powers based on “a principle of antidomination.” (Thanks to the Legal Theory Blog for collecting these and other papers.)
I’m very pleased to be joining the D.C. Circuit Review crew, and I look forward to reviewing at least one opinion in 2023.