On July 9, Chris Walker posted about the cert petition filed in July in Kisor v. O’Rourke, which presents the question of “whether the Court should overrule Auer and Seminole Rock” – the doctrine that requires courts to defer to a federal agency’s interpretation of its own regulation unless the agency’s interpretation is “plainly erroneous or inconsistent […]
The University of Chicago Press surprised me in 2015 with the happy news that they intended to bring out in paperback my 2009 book, Madison’s Nightmare: How Executive Power Threatens American Democracy. A less happy surprise was the press’s lack of interest in my providing an epilogue that would bring the analysis forward through seven […]
Over at SCOTUSblog yesterday, I examined the administrative law jurisprudence of Judge Kavanaugh, President Trump’s nominee to the Supreme Court. At nearly 4,000 words, I’d like to say it was a deep dive for a blog post, but Judge Kavanaugh has written more than 120 opinions dealing with administrative law. So the final draft was nearly […]
Over at SCOTUSblog, I have a post today examining Judge Kavanaugh’s administrative law jurisprudence and his potential impact on administrative law and regulatory practice if he were to fill Justice Kennedy’s seat on the Supreme Court. Here’s a snippet (of a nearly 4,000-word post): In reviewing Kavanaugh’s robust record on administrative law, I find myself […]
On March 6, 2018, the Justice Department sued California over its “sanctuary” laws. U.S. v. California, Dkt No. 18-264, Complaint (E.D. Cal.); Thomas Fuller & Vivien Yee, Jeff Sessions Scolds California in Immigration Speech: “We Have a Problem,” N.Y. Times A22 (March 7, 2018). The District Court has now ruled on the federal government’s preliminary […]
A couple of weeks ago, I rebutted — well, at least I think so — the suggestion that Judge Kavanaugh is an artful dodger. This week, however, I’m going to backpedal a bit. It turns out that Kavanaugh may very well have to be an artful dodger once he gets to the Supreme Court. Let […]
[Note: This post is co-authored with University of Chicago Law School colleagues Jennifer Nou and David Weisbach.] The Treasury Department and the Internal Revenue Service (IRS) have submitted a proposed rule regarding the new passthrough deduction to the Office of Information and Regulatory Affairs (OIRA) for review. This appears to be the first tax regulation labeled as “economically significant” […]
This week, a federal district court ruled that a lawsuit brought by D.C. and Maryland under the Foreign and Domestic Emoluments Clauses, against President Trump, could proceed. See D.C. v. Trump, 2018 WL 3559027 (D. Md. 2018). The decision is notable because it offers the first extended judicial interpretation of “emolument,” as that term appears […]
In the spirit of Professor Nielson’s recent post on in-line versus footnote citations, I wanted to mention a personal pet peeve regarding references to the U.S. Code. The U.S. Code is roughly half non-positive law and half positive law. Even though there are important legal distinctions between the two types of law, attorneys often refer to titles […]
It took a crisis to spur the Trump administration to action, but it did finally act. Yesterday evening, HHS released a rule addressing a New Mexico judge’s concerns with the risk adjustment program. If all goes well—more on that in a moment—the new rule should put an end to risk adjustment fiasco. To bring you […]
Because he sat on the D.C. Circuit, Supreme Court nominee Brett Kavanaugh did not decide many immigration cases. There are no immigration courts in the District of Columbia. As a result, petitions for review of orders of removal — the most common type of immigration appeal in the federal courts — do not reach his […]
[8/7/2018 Update: In an order issued today by a Ninth Circuit three-judge panel where Judge Graber has replaced Judge Reinhardt, the newly constituted panel states that “[t]he Opinions filed July 24, 2018, are hereby withdrawn to allow time for the reconstituted panel to confer on this appeal.”] Today the Ninth Circuit issued a 2-1 decision in a […]
Delay has been an endemic problem for the Freedom of Information Act (“FOIA”) regime. As a 2016 staff report of the House Committee on Government and Oversight Reform said: Agencies fail to articulate reasons for delays or explain how to navigate the process. Requesters wait months, not weeks, before receiving any response. Even a denial […]
In May, the IRS announced that it would issue regulations addressing state efforts to avoid some new deduction limits enacted under the 2017 tax bill. My prior blog post on the states’ strategy is here. I have also posted my full length article, The Charitable Contribution Strategy: An Ineffective SALT Substitute, on SSRN. Here’s the abstract: The Tax […]
While the world has focused on other things this week, a debate has engulfed a narrow, very nerdy slice of Twitter of which I am pleased to be part: Should citations in legal documents be “in-line” or in the footnotes? We don’t shy away from hard issues here at Notice & Comment. So I’ve decided […]