Every year I look forward to the George Washington Law Review‘s Annual Review of Administrative Law, as the editors do a great job of selecting articles for inclusion in the issue. (I’m not just saying that because they published the first article I wrote after joining the law faculty here.) This year’s issue was just published, […]
The D.C. Circuit issued an important decision today: it held that the removal protections for the Director of the Consumer Financial Protection Bureau violate Article II of the Constitution. As a remedy, the D.C. Circuit essentially excised the Director’s “for cause” removal protection from the U.S. Code. This means that if the President is unhappy […]
(This was a very quiet week at the D.C. Circuit. No opinions. So feel free to skip this post. If you want something else to spend five minutes on, consider this–just for the experience. Warning: that link may haunt your dreams.) This is not a novel observation, but even so, here goes: Researchers should publish […]
September was a good month for administrative law scholarship on SSRN, perhaps in part because scholars posted articles that they placed with law reviews in the fall cycle. I look forward to blogging about a number of these articles in greater detail as part of my AdLaw Bridge Series. At any rate, here is the September […]
Eight public health groups, joined by three individual physicians, filed a lawsuit today asking a federal court to order the FDA to implement graphic health warnings for cigarettes. Quick background: The 2009 Family Smoking Prevention and Tobacco Control Act (TCA) instructed to the FDA to promulgate a rule within two years that required graphic health […]
Last week, the Washington Post reported that settlement negotiations with insurers over risk corridor payments are well underway. “One health plan executive, whose attorney has spoken with Justice officials, said the department is trying to reach an agreement with suing insurers in the next two weeks on what percentage of the remaining $2.5 billion would […]
Last month, Notice & Comment hosted a two-week symposium on Seminole Rock (or Auer) deference. The complete symposium is now available on SSRN. Here is the link. And here is the Table of Contents: Introduction by Aaron Nielson The Lost History of Seminole Rock by Sanne H. Knudsen & Amy J. Wildermuth Henry Hart’s Brief, […]
On 28th June, the Department of Justice, Environmental Protection Agency, and Volkswagen proposed a judicial settlement to partially resolve the automaker’s Clean Air Act violations associated with the sale of almost 500,000 2.0 liter diesel engines that were equipped with “defeat devices.” While no one—not even Volkswagen—disputes the company’s misdeeds, the proposed partial consent […]
The D.C. Circuit, sitting en banc, devoted over seven hours — seven hours! — of oral argument to a single matter. And the full court opted to hear the case en banc in the first instance, without an ordinary three-judge panel ever having a shot at it. Obviously, the media paid attention. With so much […]
The American Bar Association Section of Administrative Law and Regulatory Practice hosts an annual conference in Washington, D.C. If you care about “admin law” — and if you don’t, you really should — it is a great event. I attended for the first time last year and enjoyed the interesting mix of lawyers and scholars. […]
To understand how private food safety standards have emerged as competitors with regulations adopted through more conventional public law processes, it is worth understanding how the major private standard setter – Global GAP – works and where it came from. The movement for private certification of farming practices resulted from two related consumer pressures and […]
Congressional Republicans will have to confront at least three tough strategic questions as they move to shut off risk corridor payments. (Prior coverage is here.) First, the courts will entertain congressional objections to any risk corridor settlements only if the House has standing to intervene in the litigation. But the question of whether the House […]
Tax issues related to the Trump Foundation continue to grab headlines. The Washington Post’s David A. Fahrenthold has tirelessly examined the organization, and recently discussed “four new cases of possible self-dealing [that] were discovered in the Trump Foundation’s tax filings.” Any allegation of self-dealing sounds inherently bad, but the discussion of the Trump transactions […]
In thinking about the future of Auer deference, I begin with a critical supposition, that stare decisis will prevail and the Court will not overturn Auer, at least not based on separation of powers principles.* Retaining Auer, however, does not mean that its doctrine will remain static. Drawing especially but not exclusively from Christopher v. […]
I planned to post solely about how judicial review would operate without Auer deference. I recently ruminated in a forthcoming Missouri Law Review symposium paper about a future without Chevron, and I think post-Auer and post-Chevron futures offer interestingly different implications. But along the way I found myself thinking about the origins of Auer deference. […]