This blog post draws an unlikely—but potentially quite important—connection between Congress’s power to “appropriate” and the three “vesting” clauses of the Constitution. It is an axiom of separation of powers formalism that the grants of executive, legislative, and judicial powers to the three branches are “exclusive.” Exclusivity on this view is meant to convey that, […]
In eliminating the Chevron doctrine, Loper Bright Enterprises v. Raimondo changed the landscape of administrative law in ways that courts, litigants, and legal scholars are still sorting out a year later. Loper Bright held that courts should exercise “independent judgment” to determine the “best reading” of statutory language without deferring to agencies’ interpretations. While the […]
Today’s Ad Law Reading Room entry is “New Challenges for Federal Regulations: Executive Branch Responses,” by Richard L. Revesz, which is forthcoming in the NYU Law Review. Here is the abstract: Over the last decade, federal regulations have faced increasingly more challenging hurdles. The Supreme Court’s 2024 decision in Loper Bright v. Raimondo, putting an […]
The D.C. Circuit issued eight opinions last week, so perhaps the rush to finish up opinions over the summer has begun. Two of the perhaps more newsworthy decisions were not in traditional admin law cases, but I’ll mention them nonetheless. In N.S. v. Dixon, No. 21-5275, the D.C. Circuit affirmed the district court’s holding that […]
On Friday, the Supreme Court issued a 6-3 decision in Trump v. CASA, holding that universal (or nationwide) injunctions likely exceed the equitable authority that Congress vested in courts in the Judiciary Act of 1789. Accordingly, the Court granted partial stays of the district courts’ preliminary injunctions. In the orders under review, the district courts […]
On June 12, 2025, President Trump signed three resolutions of disapproval in an effort to block California’s current air pollution emissions standards for cars and trucks. California and ten other states immediately filed suit in federal court, citing a number of statutory and constitutional claims in arguing that the resolutions were unlawful and asking a […]
In May, the Supreme Court temporarily upheld President Donald Trump’s decision to remove Democratic appointees to the National Labor Relations Board and Merit Systems Protection Board. The order in Trump v. Wilcox, issued on the Court’s emergency docket, suggests the precedent established in Humphrey’s Executor v. U.S. that appointees to multimember commissions are protected from […]
On Friday, the Supreme Court issued a 6-3 decision in FCC v. Consumers’ Research, rejecting a nondelegation doctrine challenge to the constitutionality of the FCC’s Universal Service Fund. Writing for the Court, Justice Kagan nicely summarizes the issues and the Court’s conclusion: The question in this case is whether the universal-service scheme—more particularly, its contribution […]
Another EPA rule met its demise in the Fifth Circuit this week. The case is Texas Corn Producers v. EPA—which presented a very technical dispute over how the government calculates vehicle fuel efficiency, but the substance of the rule did not play that big a role in the decision. This decision focused almost exclusively on […]
Accumulation of well-meaning procedures can, unintentionally, grind progress to a halt. This is commonsensical, simple, and the central message of the Abundance movement. Yet, despite being popularized by Ezra Klein, supported by ideologically-diverse groups, and implicitly embraced by the likes of Sen. Todd Young (R-Ind.) on certain issues, Abundance has yet to penetrate the policy discourse surrounding artificial intelligence […]
I have recently posted on SSRN my addition the Loper Bright literature, entitled Loper Bright: Resurrecting Skidmore in a New Era, 55 Seton Hall L. Rev. 1577 (2025)(“Resurrecting Skidmore“).[1] The piece discusses the Loper–Bright-resurrected Skidmore deference regime in terms of textualism, the major questions doctrine, and stare decisis (i.e., the continuing validity of judicial Chevron-based […]
In Learning Resources v. Trump, the district court suggested that, to empower the President to impose tariffs, Congress must do more than empower the President to “regulate . . . importation.” Congress must instead use different “words,” like “‘tariffs’ or ‘duties,’ their synonyms, or any other similar terms like ‘customs,’ ‘taxes,’ or ‘imposts.’” The district […]
Back in the day, cases involving detainees at Guantanamo Bay were argued in the D.C. Circuit regularly and frequently. Lately, not so much, but this week in al-Baluchi v. Hegseth, No. 23-5251 the D.C. Circuit was back at it again, dismissing the appeal of a detainee from a decision of the district court that denied […]
The Federal Reserve (“Fed”) is arguably the most powerful administrative agency to ever exist. Its decisions touch every facet of life, from the cost of your mortgage to the stability of the global financial system. Consequently, for decades, the Fed has enjoyed policy independence from the executive branch. This independence largely comes from the Federal […]
Summary: This post explores and assesses Justice Kavanaugh’s challenge to the veterans benefit canon of statutory construction, and similar substantive interpretive canons regarding entitlements or benefits legislation. In the midst of the major decisions the Supreme Court handed down last term, it was easy to miss Rudisil v. McDonough, 601 U.S. 294 (2024), especially a […]