Under the Supreme Court’s Seminole Rock (or Auer) doctrine, Article III courts give binding deference to an agency’s regulatory interpretation “unless it is plainly erroneous or inconsistent with the regulation.” In an effort to better understand Seminole Rock deference as judicial methodology, I recently took a deeper dive into a dataset I had created for […]
In my last post on this topic, I offered a brief summary of the litigation in the U.S. District Court for the District of Columbia challenging President Trump’s regulatory “two-for-one” executive order, EO 13771. In short, the case was initially dismissed for lack of standing, the plaintiffs amended their complaint, the government responded, and we […]
This is my third post regarding the stay of the mandate in Food Marketing Institute v. Argus Leader Media. The Supreme Court appears ready to consider, and potentially upend, the well-developed Circuit law defining the scope of Freedom of Information Act (“FOIA”) Exemption 4 — the National Parks/Critical Mass doctrine. My first post described the […]
This month has been busy, so I’m late with the August 2018 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. But it’s a really excellent set of papers: Deep Fakes: A Looming Challenge for Privacy, Democracy, and […]
From my inbox: NEW! Developments in Administrative Law and Regulatory Practice 2017 Edited by Robert Divis This resource offers practitioners in administrative law, and those interested in this area of law, an understanding of the developments in the four core areas of administrative law in 2017 (e.g. Adjudication, Constitutional Law and Separation of Powers, Judicial […]
Apologies — this post was written on the run; traveling today. As regular readers know, Chenery — both I and II — is a big deal in the D.C. Circuit. When I was clerking, I remember an oral argument in which Judge Garland asked counsel something like, “Well, wouldn’t that present a Chenery issue?,” spoken […]
Recently, a company named Adappcity Inc. launched a new application called UppstArt. The app purports to use blockchain technology to enable visual artists to “track” art they sell such that if and when it is later resold, they are able to enforce a so-called “resale royalty.” A resale royalty is a mandatory, predetermined payment made by […]
It’s my pleasure to share that on Monday, September 24, current and former Office of Information and Regulatory Affairs (OIRA) chiefs will gather for an afternoon event entitled “Celebrating 25 Years of Executive Order 12866: Reflecting on its longevity & looking to the future.” The current administrator of OIRA will join predecessors from the Obama, […]
With Judge Kavanagh’s nomination pending, there has been no shortage of speculation among commentators on how his appointment might affect the Court’s jurisprudence. Of particular interest to readers of this blog, many have noted that a Justice Kavanagh would tip the Court toward greater skepticism of Chevron deference. On and off the bench, Judge Kavanaugh […]
This American Life has produced a broad look at the state of immigration adjudication, from asylum applications to criminal border crossing prosecutions and from applications for legal status to refugee admissions. The discussion about the notebook— a hand-written list of people waiting in line in Mexico to even approach the border– is especially intriguing. The […]
Yesterday the House Judiciary Committee marked up and reported out favorably legislation that would attempt to prohibit federal courts from issuing certain types of nationwide injunctions: No court of the United States (and no district court of the Virgin Islands, Guam, or the Northern Mariana Islands) shall issue an order that purports to restrain the […]
The D.C. Circuit did not decide any cases this week. This creates a dilemma. How should you spend your “five minutes”? One option is to listen to this song and call it a week. That would be a very good choice. For those of you, however, who would like to learn something new about the […]
That’s the title of a new perspective piece from Rachel Sachs and me in the New England Journal of Medicine. The Trump administration has refused to allow Massachusetts to experiment with a closed formulary, which would give the state some leverage in price negotiations over low-value drugs. But, as we explain, CMS has offered no written explanation whatsoever for its refusal. […]
NOTE: The next deadline for applications is November 1, 2018. Grant awards will be announced in January 2019. The Dirksen Congressional Center invites applications for grants to fund research on congressional leadership and the U.S. Congress. The Center, named for the late Senate Minority Leader Everett M. Dirksen, is a private, nonpartisan, nonprofit research and educational […]
Last week’s hearing in Texas v. United States convinced a lot of observers, me included, that a district court judge in Texas is poised to declare that all or part of the Affordable Care Act is unconstitutional. When and if he does so, the judge might also enter an injunction ordering the administration to stop enforcing the Act […]