Read Part I here, Part II here, and Part III here. Congress abdicates its responsibility by relying on the courts to enforce bureaucratic oversight. The received antidotes to the administrative state—workforce reduction, ending judicial deference to agency interpretations of statutes, or demanding Congress write unambiguous laws—are hardly new; they have been recommended for as long […]
Read Part I here and Part II here. Special interests hold power in the administrative state. Political scientists and legal scholars suggest the administrative state exists because as policy problems became more complex, Congress needed to develop expertise within the executive branch to not only understand the economic and technological changes in the postbellum American […]
Read Part I here. Arbitrary bureaucratic power is at its highest when agencies determine the scope of their own jurisdiction, but jurisdiction protects the special interests influencing the bureaucracy. A brief illustration of real-world issues demonstrates what I mean by agency “jurisdiction.” Example 1 Medical testing laboratory LabMD helped physicians diagnose prostate cancer. An employee […]
Criticisms abound of a bloated, unaccountable, arbitrary, and abusive federal bureaucracy. But what if the way in which the critics have lambasted the administrative state is misconceived? The critics have ideas about potential antidotes: changing how the courts review administrative actions, increasing congressional capacity for oversight, terminating wasteful spending programs, and, above all else, increasing […]
There’s probably not a communications or administrative lawyer or scholar alive today who is not familiar with the decades-old “net neutrality” saga. Well, due to the Court of Appeals for the Sixth Circuit’s decision in Ohio Telecom Association v. FCC on January 2, the saga, mercifully, may be coming to an end. With no need for more […]
December was productive month at the Administrative Conference of the United States (ACUS), and we have even more exciting work planned for 2025. Read on to learn about the latest news from ACUS, including the three new recommendations adopted at the Conference’s 82nd Plenary Session and how to get involved in our ongoing study of […]
The D. C. Circuit released only one opinion last week, on the last day of the year, and, fittingly, it involved a January 6 defendant. It will be interesting to see what the New Year brings for these defendants whose criminal activities have occupied so much of the recent time of the courts in the […]
Whether it is PayPal, Venmo, Cash App, or something else, most Americans have used one or more payment platforms. These platforms are usually “viewed as offering a relatively fast, easy, secure, and affordable way of making and receiving retail payments.” Soon, the payment platform marketplace may grow a bit more crowded. In a blog post from January […]
Today’s Ad Law Reading Room entry is “Immigration Status Federalism,” by David Chen, which is forthcoming in the Yale Journal on Regulation. Here is the abstract: Recent subfederal interventions into immigration policymaking have sparked an explosion of federalism scholarship, but nearly all such accounts focus on two domains: enforcement and state benefits. The literature continues […]
With 2024 coming to a close, I’m posting the November list now and will post the December list right after the new year. Here is the November 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. For more on why SSRN […]
From the job posting: The Consumer Protection Branch is seeking an attorney to defend the Food & Drug Administration, Consumer Product Safety Commission, Federal Trade Commission, and other federal agencies in civil litigation throughout the country. The attorney will defend against high-profile challenges to agency actions, policies, and programs related to food, drugs, medical devices, […]
The en banc Fifth Circuit released some zingers ahead of the holiday season. In Environment Texas Citizen Lobby, Inc. v. ExxonMobil Corp., the court of appeals issued a one-paragraph per curiam opinion—accompanied by 166 pages of concurrences and dissents—blessing a $14.25 million civil penalty against ExxonMobil. The showdown largely focused on standing. Appellate geeks may […]
The U.S. Court of Appeals for the Fifth Circuit recently issued its decision in Van Loon v. Department of the Treasury, a case that has been closely watched by the press and Bitcoin advocates. As set forth below, this decision has important implications for Bitcoin. In particular, it effectively precludes the federal government from banning Bitcoin under the International Emergency […]
“No delay” was the theme last week at the D.C. Circuit. In one case, the court denied a temporary injunction against the TikTok ban-or-sale requirement going into effect. In another case, the court denied a petition for review on the ground that the agency would have reached the same result on remand even without the […]
Happy Holidays! I am excited to announce that my colleague Mikaela (Schulz) Milligan are joining forces with Shane Pennington to bring you a (somewhat) regular column about admin and regulatory cases in the Fifth Circuit. While I have written for Notice and Comment as a Guest Columnist a few times, this post is my first […]