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 […]
As we enter the second half of June, all eyes may be trained on the Supreme Court, but work at the D.C. Circuit continues apace. The Court issued three administrative-law decisions last week. The acronyms are mostly the usual fare—FERC, NLRB, and FOIA—but here’s one you do not see every day: MEAN. Plus, an opinion […]
During the week of June 2, the D.C. Circuit issued two administrative-law opinions and one interesting denial of a motion for an emergency stay. In Secretary of Labor v. Industrial TurnAround Corporation, the court dismissed a petition from the Secretary of Labor for lack of jurisdiction. In August 2022, three miners were injured when a […]
Like many Americans, I’m deeply alarmed by the escalating attacks on consumer protection in Washington – especially the efforts to gut the Consumer Financial Protection Bureau. Weakening this vital agency will lead to more fraud, more predatory lending, and greater risk of another economic crisis. I’m also deeply troubled by recent developments at the Federal […]
Among the 161 Executive Orders that President Trump has issued during his second term through June 12, 2025, at least nine relate to federal regulation. These are identified in paragraph 6 below. (The designation “at least nine” is to recognize that the definitional boundaries of which executive orders relate to federal regulation are somewhat subjective […]
With the legality and wisdom of “nationwide” injunctions at issue in the courts and Congress, it is time for the states to view the problem through the lens of federalism. Using this lens, the states should oppose all use of nationwide injunctions and support their limitation by the Supreme Court and Congress because the exercise of such […]
We have begun the development of panels for the 2025 ABA Administrative Law Conference, which will be held virtually again on November 20-21, 2025. This is a great way to share your research and expertise with around 1,000 regulatory lawyers and scholars. We expect to have twenty panels on various topics. In particular, we would like […]