States use interstate compacts to address various multi-state regional problems.[1] Sometimes compact signatories create a “compact agency” to administer the compact. Must such agencies provide access to their records? Every state public records law grants the public access to the records of state agencies. The federal Freedom of Information Acts (“FOIA”) imposes similar public access […]
The Tenth Circuit just granted rehearing en banc in the case of Aposhian v. Barr, a challenge to the Trump Administration’s bump stock regulation promulgated in response to the 2017 mass shooting in Las Vegas. The court has asked counsel to answer five specific questions in the briefs, including multiple fascinating inquiries related to the doctrine of Chevron deference. Courts review agency […]
Agencies can withhold documents pursuant to Freedom of Information Act’s (FOIA) deliberative process privilege only if the documents are both predecisional and deliberative.[1] If an agency refuses to apply a court of appeals decision outside of that Circuit, that is, if it engages in “intercircuit nonacquiescence,”[2] when is “the decision” to do so made? In […]
Lots of great new administrative law scholarship on SSRN this summer! Here is the August 2020 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. Rules, Commands and Principles in the Administrative State by Adrian Vermeule (Yale Law Journal […]
Earlier this week, I participated virtually on a panel on the nondelegation doctrine and Congress’s role in the modern administrative, as part of the Federalist Society’s Eighth Annual Executive Branch Review Conference. Here is the video: And here’s the description of the panel: In Federalist Paper No. 51, James Madison argued that a system of […]
Although scholars may not be able to see each other at conferences or other events for the foreseeable future, they can still maintain some virtual connection. The Association of American Law Schools (AALS) Section on Administrative Law continues its initiative: “Meet a Member.” The section will introduce our members from time to time, and it […]
“[P]etitions for rehearing en banc are frequently filed but rarely granted.” So says the Handbook of Practice and Internal Procedures of the D.C. Circuit. Yet this week’s post is all about en banc. First, the D.C. Circuit sat en banc on Monday to hear Allegheny Defense Project v. FERC and on Tuesday to hear Committee […]
In August, the governing council of the ABA Section of Administrative Law and Regulatory Practice voted to confirm the nomination slate of new officers and council members, and the leadership transition became effective yesterday. I am very excited to chair the Section this year and to welcome the new leadership. I’d like to thank the […]
The Supreme Court’s decision in County of Maui v. Hawaii Wildlife Fund has prompted a flurry of discussion on Twitter and elsewhere about whether Justice Breyer’s majority opinion in the case adopted the position that the government can waive or forfeit eligibility for Chevron deference by failing to argue for it, and thus overturned the […]
Shortly after the Supreme Court decided Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (No. 19-431), I observed in a post that the majority “repeatedly lays out the case for why the ACA lacked an intelligible principle in delegating to a sub-agency (HRSA) what it was that health plans had to […]
The Administrative Conference of the United States is maintaining a collection of resources related to how federal agencies are managing adjudication caseloads under the extraordinary conditions created by the pandemic. The collection includes resources for agencies such as ACUS recommendations, ACUS-commissioned reports and handbooks, and similar non-ACUS materials. It also offers an extensive list of […]
In his comprehensive work, A History of American Law, Lawrence M. Friedman identifies the roots of the modern welfare system in the poor laws of the colonies.[1] Descended from laws of Elizabethan England with the same label, colonial law established a system of “discriminating against the unfortunate stranger.”[2] New England towns would “warn out” new arrivals to disclaim […]
About a year ago I wrote a post entitled “Chevron Waiver.” Here is the gist of it: So the Court, this week, wasn’t that busy. Which is good, because it gives me time to elaborate on an issue that came up last week: Chevron waiver. I promised to discuss recent scholarship on the topic. Well, here are three recent articles […]
Yesterday Paul Ray, the Administrator of the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB), issued guidance to all executive departments and agencies on implementing Executive Order 13,924 to improve and reform regulatory enforcement and adjudication. As I noted in February, OMB had issued a request for information […]
We thought you might like to learn more about members in the ABA Administrative Law & Regulatory Practice Section, so we are restarting our Section Member Spotlight Series. Prior posts in this series can be found here, on the Section’s legacy Notice and Comment blog that merged with the Yale Journal on Regulation‘s blog in […]