Notice & Comment

Notice & Comment

Notice & Comment

Zivotofsky and Spokeo

Last week, Will Baude published a column in the New York Times, available here, arguing that the Court should postpone deciding Zivotofsky v. Kerry, a case already argued this term, until it decidesSpokeo v. Robins, which is slated for next term. The two cases seem quite different. Zivotofsky is about Congress’s and the President’s power […]

Notice & Comment

Chris Walker on Agency Interpretation

Administrative agencies regularly interpret statutes in the course of rulemaking, but there is little data about how they go about interpreting those statutes. Do the rulemakers rely on canons of interpretation? Do they look at legislative history? These questions are important for many reasons, one of which is whether agencies act as faithful agents of […]

Notice & Comment

The Next Level of Agency Deference?

Before it collapsed, Lehman Brothers engaged in various tax-motivated transactions, including ones to earn foreign tax credits. Last week, a federal judge addressed the merits of one of those controversies, holding against the defunct bank. The court tucked in a footnote a potentially interesting twist on agency deference. It noted that a so-called IRS Advisory […]

Notice & Comment

How to Keep the Subsidies Flowing in a Handful of States

I’ve been toying with an idea that might allow the Obama administration, in the event that it loses in King v. Burwell, to keep subsidies flowing to residents in some of the 34 states that declined to create an exchange. What if HHS declared that any state that performs substantial, ongoing, and essential exchange functions […]

Notice & Comment

A Potentially Lurking Issue in a Recent Cert. Grant

On May 4, the Supreme Court granted certiorari in FERC v. Electric Power Supply Association (and a companion case). The case raises the question whether FERC exceeded its authority in issuing a regulation that gives retail energy customers incentives to reduce electricity consumption. The Federal Power Act (“FPA”) grants FERC the power to regulate the […]

Notice & Comment

Will the Government Get Chevron Deference in King v. Burwell?, by Connor Raso

The Government is likely to prevail in King v. Burwell if its interpretation of the Affordable Care Act receives Chevron deference. This raises an important question: what influences when Supreme Court justices grant Chevron deference to agencies? Prof. Bill Eskridge and I examined this question in a paper that examined all Supreme Court cases from […]

Notice & Comment

The IRS’s Mercenaries

Microsoft Corp. has recently challenged the enforcement of IRS summons regarding some of its international tax planning, arguing that the IRS has flouted the law by allowing Quinn Emanuel Urquhart & Sullivan to participate in an audit of the company. The dispute raises many fundamental questions that a district court has been asked to answer. […]

Notice & Comment

Every Regulatory Attorney Always Has Standing to Challenge the Constitutional Design of Her Regulator

So would hold Judge Brett Kavanaugh of the U.S. Court of Appeals for the DC Circuit in a case challenging the constitutionality of the institutional design of the Consumer Financial Protection Bureau. Judge Kavanaugh has written some of the most provocative concurring and dissenting opinions about the constitutional limits and permissions of institutional design, including […]

Notice & Comment

The Incompatibility Clause and a Recent Rulemaking

Yesterday saw a fight over the Department of Defense’s proposed rule that would protect military families from predatory lending. The proposed regulation seeks to implement the Military Lending Act, which caps interest rates on loans to service members, by closing loopholes that have allow finance companies to continue offering high-interest loans to enlisted personnel. A […]