We’re now over a month into the second shutdown of the second Trump administration. What have we learned? Mainly that the problem of “separation of parties, not powers” is growing worse and, in consequence, Congress’s power of the purse may be unravelling. Shutdowns happen because of time-limited appropriations. By providing funds to most agencies for […]
In Intuit, Inc. v. FTC, the Fifth Circuit held that the FTC’s internal adjudication “of a deceptive advertising claim . . . violated the separation of powers.” The decision is a major win for the conservative legal movement, which has long fought to curb the administrative state. Time will tell whether it is a loss for the […]
Here is the list of works included in the March 2026 Comparative Administrative Law Scholarship Corner, which is curated by Eduardo Jordão (FGV Law School, Rio de Janeiro), with the assistance of Eduarda Onzi. The Scholarship Corner is a resource provided through the Comparative Administrative Law listserv. For more information about this terrific resource, check out my first […]
On February 20, the Trump administration announced the imposition of tariffs pursuant to Section 122 of the Trade Act of 1974, a section designed to counteract balance-of-payments crises. A number of helpful articles have since appeared to explain that a trade deficit is not the same thing as a balance-of-payments deficit, let alone the sort of fundamental international payments […]
Aaron Nielson and I have posted to SSRN a draft of a new paper, entitled Article II and the Civil Service, which is forthcoming in the Virginia Law Review. Here’s the abstract: The federal government employs more than two million civil servants. Most are hired through a competitive process centered on competence and cannot be […]
Today’s Ad Law Reading Room entry is “Making Broadcast Content Regulation Aggressive Again,” by Stuart Minor Benjamin. Here is the abstract: The Federal Communications Commission has statutory authority over broadcasting that far exceeds any governmental authority over online platforms, cable television, or newspapers: Every license renewal or transfer depends on the FCC’s determination that it […]
For the first time in American history, the Supreme Court is poised to decide what it means for the president to remove a principal officer “for cause.” The case—which arises from the attempted removal of Lisa Cook, a member of the Board of Governors of the Federal Reserve System—has major implications for central bank independence […]
Lost in the extensive coverage of the Supreme Court’s February 20, 2026 opinion invalidating most of President Trump’s tariffs was the fact that there were two related cases before it[1] and that it had entirely dismissed one of them. The lead case, in fact. That coverage gap is understandable. The only mention the Court makes […]
The D.C. Circuit published three opinions during the week of March 9, none of which broke new ground. In Clean Fuels Alliance America v. EPA, Judge Garcia wrote for a unanimous panel in holding that a challenge to EPA’s Renewable Fuel Standard (RFS) Program was moot. Its holding was “narrow” and rested on circuit precedent: Petitioners […]
In holding that law enforcement officers could not place listening devices on the outside of a public phone booth without a warrant, the Supreme Court famously proclaimed: “The Fourth Amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 351 (1967). That insight provides perspective on two recent decisions regarding the collection and […]
For the past year or so, I’ve been working on a project for the Administrative Conference of the United States on best practices for drafting regulatory preambles in light of recent developments in judicial review of agency action. The draft report is now available. In preparing the report, I interviewed nineteen current and former agency […]
Last week, the D.C. Circuit decided Simmons v. Rubio, a case about the deadline to seek review of a decision of the Foreign Service Grievance Board. The plaintiff is a foreign service officer who filed a grievance about her treatment at work. The Foreign Service Act permits officers to file a complaint in district court “not […]
On February 20th, the U.S. Supreme Court struck down a large portion of President Trump’s vast tariff regime, holding that the International Emergency Economic Powers Act (IEEPA) does not authorize the president to impose tariffs. In response, the Trump administration announced its determination to find alternate routes for its America First trade policy. While the […]
Within two months of his arrival in the White House, Donald Trump fired Commissioner Rebecca Slaughter from the Federal Trade Commission because, in his words, “her position on the agency is incompatible with this Administration’s policies.” Yet the FTC statute permits presidents to fire Commissioners only on a showing of “inefficiency, neglect of duty, or […]
This month, two judges made a strong bid—perhaps the strongest of the century—to limit when agencies may make law through adjudication rather than rulemaking. In Brown-Forman Corp. v. NLRB, the Sixth Circuit declined to enforce a bargaining order that relied on Cemex Construction Materials Pacific, LLC, which announced a new standard for remedial bargaining orders. […]