Notice & Comment

Notice & Comment

Notice & Comment

Scalia and Chevron: Not Drawing Lines, But Resolving Tensions

Among the many reasons for mourning Justice Scalia’s untimely passing (on which I’ve written at length elsewhere) is the fact that his death abruptly cut short his late-career reconsiderations of the administrative state. As Aaron Nielson observes, recent years had seen Justice Scalia expressing serious doubts about judicial deference to agency interpretations of their own […]

Notice & Comment

All Good Things (Including Agency Discretion) Must Come to an End, by Tamara Tenney

As highlighted by Professor Bagley on this blog last Friday, the D.C. Circuit’s recent opinion inAmerican Hospital Association v. Burwell offers an intriguing look at a complex problem facing the Medicare program—and the health care providers and suppliers wrapped up in its dramatically backlogged appeals system. Professor Bagley’s excellent post neatly articulates the complicated issues […]

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The Supreme Court Vacancy and the Majoritarian Difficulty, by Daniel Hemel

A central premise in administrative law is that federal judges lack the democratic legitimacy of executive branch officials. As Justice Scalia put it in City of Arlington v. FCC, “unelected . . . federal judges” are “even less politically accountable” than “unelected federal bureaucrats.” A similar sentiment suffuses Justice Stevens’s opinion for the court in […]

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Irresistible Forces, Immovable Objects, and Medicare

The D.C. Circuit has released a fascinating opinion about the total meltdown of Medicare’s system of internal appeals. The case brings to mind the old paradox of the irresistible force and the immovable object: it’s genuinely vexing and about as difficult to solve. As I explained eighteen months ago, Medicare’s got a big problem on […]

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Sohoni on Gersen & Stephenson on Over-Accountability (AdLaw Bridge Series)

After an extended hiatus and by (somewhat) popular demand, I’m bringing back the weeklyAdministrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. I have a backlog of a few dozen pieces I’d love to highlight, and these reviews […]

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President Trump vs. the Bureaucratic State, by Daniel Hemel

The betting website PredictIt now puts the odds of Donald Trump winning the White House this November at 22%. I don’t think that estimate is too far off: Trump is ahead in virtually every recent Republican primary poll, and he trails Hillary Clinton by 3.4 percentage points in a general election matchup (according to the […]

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​Regulatory Implications of the New USG Strategy for Engagement in International Cybersecurity Standardization, by Jeff Weiss

On December 21, 2015, the National Institute of Standards and Technology (NIST) transmitted to Congress a strategy for U.S. Government engagement in international standardization for cybersecurity. Development of such a strategy was required by the Cybersecurity Enhancement Act of 2014, which tasked NIST to work with relevant federal agencies to ensure interagency coordination in “the […]

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The Briefs in House v. Burwell

To follow up on yesterday’s update on House v. Burwell, I thought it might be useful to post the briefs accompanying the cross-motions for summary judgment. To my knowledge, they haven’t been made publicly available elsewhere: House’s Opening Brief. Burwell’s Opening Brief. House’s Opposition Brief. Burwell’s Opposition Brief. House’s Reply Brief. Burwell’s Reply Brief.

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Immigration Law Is Torn Between Administrative Law and Criminal Law, by Michael Kagan

The primary reason for the decline of immigration exceptionalism is that plenary power has become “subject to important constitutional limitations,” as the Supreme Court said in Zadvydas v. Davis. We do not yet have a complete picture of what all of those constitutional limitations are. We also know that plenary power has not entirely disappeared, […]

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DAPA, “Lawful Presence,” and the Illusion of a Problem, by Anil Kalhan

In an essay published earlier this week, Prof. Michael Kagan expresses concern that “one aspect” of the Obama administration’s executive actions on immigration might be vulnerable when the Supreme Court adjudicates United States v. Texas later this year. In particular, Kagan worries that the plaintiffs might “have a valid point” when they assert that the administration’s initiatives—Deferred […]

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New Regulatory Policy Development: OMB’s Revised Guidance to Federal Agencies on Standards and Conformity Assessment, by Jeff Weiss

On January 27, 2016, the White House Office of Management and Budget (OMB) published its long-awaited revision of Circular A-119 on “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities.” The new policy was developed through an interagency process that took into account public input received during two […]