In early 2025, the Trump Administration advanced a sweeping new claim about the constitutional status of senior federal officials. In litigation before the Merit Systems Protection Board and in internal executive-branch guidance, the Justice Department argued that all members of the Senior Executive Service (SES) must be treated as “inferior officers” under the Appointments Clause […]
The Supreme Court issued its opinion in the tariff cases yesterday. The decision was highly splintered. Although six justices agreed that the President could not impose IEEPA tariffs, the Chief Justice was unable to maintain a majority that clearly relied on any one rationale. Instead, the justices split as follows: I’ll start with what I […]
There is a great deal at stake for the financial system and the economy in the outcomes of two cases before the Supreme Court, Trump v. Slaughter and Trump v. Cook. As I argued in a previous post, however, the Court’s arguments in both cases spoke only obliquely to the present reality of what is […]
There are plenty of good use cases for AI in government decisionmaking, but sometimes we need to say no. It seems like it’s harder than it should be right now to say no. AI systems are truly remarkable but they are not capable of making values-laden policy decisions. We kid ourselves if we think that a “human in the loop” is more than an impoverished way to think about what agencies owe the public. We can likely make great progress in regulatory policy by letting algorithms into our loop, not the other way around.
Last week, the D.C. Circuit issued two administrative-law opinions. In Affirmed Energy, LLC v. FERC, the court addressed the Federal Energy Regulatory Commission’s approval of changes to regional electricity-market rules. The case involved PJM Interconnection LLC, which manages the electrical grid in parts of thirteen states and the District of Columbia. Each year, PJM holds […]
This post is the eleventh contribution to Notice & Comment’s symposium on AI and the APA. For other posts in the series, click here. The questions animating this symposium—how administrative law should adapt to the rise of artificial intelligence—are hardly confined to the United States. The United Kingdom, like many other jurisdictions, is grappling with the same […]
Today’s Ad Law Reading Room entry is “Administrative Decentralization,” by David Fontana. Here is the abstract: The legitimacy of the administrative state has been challenged since it was first created. The persistent war over the administrative state now features a newly significant and largely unexamined front. Political and legal leaders from across the ideological and […]
Consistent with its purported originalist ethos, the Supreme Court frequently invokes the past to justify its decisions curtailing agency powers. The heads of the Consumer Financial Protection Bureau (CFPB) and the Public Company Accounting Oversight Board (PCAOB) are subject to at-will removal because, in the Court’s view, no agencies like them have ever existed before. […]
To the extent that § 553 attempts to create a process that can improve the substance of regulations, it does so with specifically human intelligence in mind. If agencies over-rely on AI to carry out these procedural tasks, they threaten to undermine § 553’s goal of improving the quality of final rules.
Here is the list of works included in the January 2026 Comparative Administrative Law Scholarship Corner, which is curated by Eduardo Jordão (FGV Law School, Rio de Janeiro), with the assistance of Eduarda Onzi. The Scholarship Corner is a resource provided through the Comparative Administrative Law listserv. For more information about this terrific resource, check out my first […]
Federal agencies are rapidly expanding their use of artificial intelligence (AI) in government procurement. Much of the public discussion has centered on relatively narrow applications, such as tools that support market research or flag outdated contract clauses. When used to summarize or organize procurement-related information, these tools may pose manageable risks. More complex challenges arise when they extend into discretionary functions, including core evaluative tasks, that federal procurement doctrine presumes a human decision-maker will perform.
As these federal efforts get underway, agencies in D.C. can draw on the successes of their counterparts in Richmond. Though federal regulations and state regulations differ in certain important respects, there are substantial similarities. Here are some of the possible components of a federal AI-empowered regulatory modernization initiative.
Upon returning to the presidency, Donald Trump appointed Elon Musk as a temporary employee to head a “Department of Governmental Efficiency” (“DOGE”), using the structure of the United States Digital Service, a previously innocuous the White House entity. Executive Order, Establishing And Implementing The President’s “Department Of Government Efficiency,” §2(a) & (b) (Jan. 20, 2025).[1] […]
Can chain-of-thought prompt engineering solve the black box problem?
There’s a better way to develop administrative common law for these changing times: Rather than accept that this law is something that courts make through an exercise of judicial creativity and policy balancing, we should instead embrace an administrative common law that courts find in prevailing practices.