As part of my prep for this year’s ABA Administrative Law Conference, I put together a list of the regulatory policy documents that have been issued since the start of President Trump’s second term. Looking over these documents, a few themes emerge. First, the assertion of executive power. You can see this in assertions that […]
Justice Scalia famously described the Lemon test as a “ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried . . .” For many, this aptly describes the nondelegation doctrine—a ghoul that haunts the administrative state. Almost a century has passed since the Supreme Court invoked […]
In an essay published earlier this fall, Professor Caleb Nelson argues that, as a matter of originalism, the President does not have a constitutional power to remove executive officers. Professor Nelson is a renowned scholar, whose arguments could well influence the Supreme Court in two upcoming removal cases: Trump v. Slaughter and Trump v. Cook. […]
November 18, 2025, Update: AALS New Voices in Administrative Law seeks more senior commentators! We’ve received a bumper crop of submissions from junior scholars and need more senior commentators. The New Voices program is scheduled for Tuesday, January 6, 2026, from 4:10 to 5:25 p.m. at the AALS Annual Meeting in New Orleans. If you’re able to join […]
The D.C. Circuit decided one merits case involving the Essential Air Service program, stayed an interim final rule governing commercial driver’s licenses, and denied en banc rehearing of the mandamus order in the Alien Enemies Act case. Essential Air Service First, in Southern Airways Express, LLC v. U.S. Department of Transportation, the court unanimously denied a […]
The ABA Section of Administrative Law and Regulatory Practice is excited to announce that Professor Cass Sunstein will be keynoting the annual ABA Administrative Law Conference, this Friday, November 21st. His remarks will focus on the grand narrative in administrative law: For many decades, administrative law has been clouded, or perhaps haunted, by a Grand […]
Each year the ABA Section of Administrative Law and Regulatory Practice hosts a signature conference on administrative law. Since we switched the annual conference online during the COVID-19 pandemic, we have had more than 1,000 attendees at our annual conference. The vast majority of our attendees have been government attorneys. The protracted government shutdown has […]
The Supreme Court’s 1935 landmark decision, Humphrey’s Executor, is on the chopping block. In Trump v. Slaughter, scheduled for argument next month, the Court will consider whether President Trump lawfully removed Rebecca Slaughter from the Federal Trade Commission. It has directed the parties to brief and argue “whether the statutory removal protections for members of […]
There are probably other candidates, but the Supreme Court’s virtually unexplained order of November 6 in Trump v. Orr, allowing the Trump Administration to implement its decision to require trans citizens seeking new or renewed passports to use their gender at birth, instead of their current gender, seems to win the award as the most […]
At oral argument in the tariff cases, a so-called “donut hole” argument was raised. The argument maintains it would be highly unlikely for the statutory phrase “regulate … importation” to confer a host of unenumerated powers—including the power to impose licensing fees—but not confer the power to regulate importation by imposing duties (i.e., tariffs). The donut hole argument […]
Despite the overwhelming concern over the use of artificial intelligence, one of the most promising use cases for AI is regulatory reform. Regulatory accumulation — the slow accumulation of rules, related guidance, case law, and specialized knowledge — has created a knowledge base that no human brain could contain, let alone comprehensively analyze. AI, on […]
The D.C. Circuit issued no opinions last week. There was one late October order to note, however—declining a stay pending appeal sought by the FTC. The case is Media Matters for America v. FTC, No. 25-5302, in which Media Matters sued to quash a civil investigative demand issued by the FTC, arguing that it was […]
Today’s Ad Law Reading Room entry is “How Not to Design Expert Bureaucracy: Lessons from Administrative Law,” by Wendy E. Wagner, which is forthcoming in the North Carolina Law Review. Here is the abstract: Can we trust our agency experts to provide reliable scientific knowledge to inform policy? This question has worried academics, policymakers, and […]
Now that the Department of Justice has taken the dramatic step of indicting New York Attorney General Letitia “Tish” James, plenty of ink and pixels have been spent assessing the procedural missteps of the prosecution and the strength of the evidence. An important question was lost in the shuffle: was the investigation of James legal […]
On the Friday after the election last November, the Journal of Law Reform student editors and I convened scholars from across the country at the University of Michigan Law School to discuss the future of agency independence. The goal was to center our discussion on the traditional unitary executive debate and then look beyond statutory […]