Tell me about despair, yours, and I will tell you mine.Meanwhile the world goes on. – Mary Oliver October Term 2023 ended with a bang. Chevron deference is no more, a gaping hole has been carved into the APA’s statute of limitations, and the Court has once again halted an EPA regulation mid-litigation. This is, to understate matters considerably, a dreary time […]
Today’s Ad Law Reading Room entry is “Presidential Control and Administrative Capacity,” by Nicholas Bednar, which is forthcoming in the Stanford Law Review. Here is the abstract: Presidential control is the power to direct administrative capacity toward the president’s own policy objectives. Accordingly, presidential power vis-à-vis administrative policymaking has two necessary components: control and capacity. […]
When the Supreme Court throws out the most cited case in your field, initial reactions may range from despair to elation—strong feelings related to the merits and consequences of the decision—to a more pedestrian variety of consternation: I have to re-write my casebook! As concerns Chevron’s demise, the shift in case-law at the very least warrants the latter form of […]
By immunizing Presidents against criminal liability in some circumstances, the Supreme Court’s recent decision in Trump v. United States limited one form of potential accountability for lawless presidents. Whatever the scope of this immunity, however, the decision left in place one of the most important constraints on the American presidency: the need to act through subordinates to carry out […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before (arguably) the “second most important court in the land.” Let’s get straight to business. FCIC Reaps Kisor Deference Congress created the Federal Crop Insurance Corporation “to improv[e] the economic stability of agriculture.” The FCIC carries out this mandate by offering reinsurance to […]
Loper Bright Enterprises v. Raimondo recognizes that Congress may delegate to agencies the authority to exercise discretion in a certain domain, as I have argued. A further question, of both doctrinal and practical significance, is whether those delegations must be express, or instead can also be implied. In an excellent recent online seminar, my esteemed co-author Michael Herz […]
Welcome to Sixth Circuit Reviewed! This is your monthly recap of administrative law from—as some like to call it—“America’s Court.” (Yes, people call it that. I think.) Often overlooked in the adlaw world by the towering D.C. Circuit (and, apparently, the Ninth Circuit), the Sixth has its fair share of high-profile administrative law decisions: OSHA challenges, private nondelegation, vaccine mandates, and […]
Over the last week, the Supreme Court put the administrative state under significant new scrutiny, signaling a turning point in a larger project of consolidating policy decision-making power in the judiciary. One case to spotlight is SEC v. Jarkesy, which raises questions about the future role of agencies in enforcing statutory violations. The Court in Jarkesy held that […]
Given the amount of commentary being addressed to the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, it would appear that the Chevron decision may continue to be one of the Court’s most-discussed opinions even after its demise. But the Court can, and should, seize the opportunity created by Loper Bright to shrink, rather than expand, the number of “doctrines” that […]
While some other things were happening last week in administrative law, the D.C. Circuit decided four cases of note. The first one involved a (Chevron-free) disagreement over the meaning of the Mining Law of 1872. In Earthworks v. Department of the Interior, a divided panel affirmed the entry of summary judgment for the Interior Department in a […]
I’m currently writing an article tentatively titled “Statutory Liquidation,” which is about courts use of post-enactment practice or understanding to settle statutory meaning.* I was particularly interested, then, when in Loper Bright the Court not only cited Skidmore with seeming approval, but repeatedly emphasized the “respect” traditionally afforded to longstanding, consistent agency interpretations, especially when […]
In Loper Bright Enterprises v. Raimondo, the conservative majority of the Supreme Court finally made good on its threat to overturn the Court’s Chevron doctrine. Since 1984, Chevron has required courts to defer to agency interpretations only after evaluating and passing three steps of analysis: (a) at “Step Zero” – by deciding that Congress has left ambiguities in a statute that (according […]
Short Answer, per Justice Gorsuch: “Today, the Court places a tombstone on Chevron no one can miss.” Today, in Loper Bright Enterprises v. Raimondo, the Supreme Court overruled the Chevron deference doctrine — the command from a 1984 decision that courts defer to federal agencies’ reasonable interpretations of ambiguous statutes the agencies administer. Chief Justice […]
Today, the Supreme Court decided Loper Bright Enterprises v. Raimondo which overruled Chevron v. NRDC. John Roberts, writing for a 6-3, ideologically divided court, held that Chevron Deference is not compatible with § 706 of the Administrative Procedure Act. The decision comes in the wake of SEC v. Jarkesy, in which the Court held that the Seventh Amendment entitles defendants to a jury […]
On Thursday, the Supreme Court decided SEC v. Jarkesy. The conservative appointees banded together in a 6-3 ruling, concluding that the Seventh Amendment entitles defendants to an Article III jury trial in SEC civil enforcement proceedings. First, John Roberts writes that the relevant SEC enforcement actions implicate the Seventh Amendment because the agency’s antifraud provisions mirror […]