In holding that law enforcement officers could not place listening devices on the outside of a public phone booth without a warrant, the Supreme Court famously proclaimed: “The Fourth Amendment protects people, not places.”  Katz v. United States, 389 U.S. 347, 351 (1967).  That insight provides perspective on two recent decisions regarding the collection and […]

For the past year or so, I’ve been working on a project for the Administrative Conference of the United States on best practices for drafting regulatory preambles in light of recent developments in judicial review of agency action. The draft report is now available. In preparing the report, I interviewed nineteen current and former agency […]

On February 20th, the U.S. Supreme Court struck down a large portion of President Trump’s vast tariff regime, holding that the International Emergency Economic Powers Act (IEEPA) does not authorize the president to impose tariffs. In response, the Trump administration announced its determination to find alternate routes for its America First trade policy. While the […]

Within two months of his arrival in the White House, Donald Trump fired Commissioner Rebecca Slaughter from the Federal Trade Commission because, in his words, “her position on the agency is incompatible with this Administration’s policies.” Yet the FTC statute permits presidents to fire Commissioners only on a showing of “inefficiency, neglect of duty, or […]

This month, two judges made a strong bid—perhaps the strongest of the century—to limit when agencies may make law through adjudication rather than rulemaking. In Brown-Forman Corp. v. NLRB, the Sixth Circuit declined to enforce a bargaining order that relied on Cemex Construction Materials Pacific, LLC, which announced a new standard for remedial bargaining orders. […]

Notice-and-comment rulemaking is the core mechanism through which the public can shape regulation. As such, courts ask whether agencies have responded adequately to significant comments and scholars often examine whether final rules differ from proposals that precede them—but those approaches typically measure change at the level of entire regulations or, more broadly, documents. That is […]

For more than thirty years, Republicans in all three branches of the national government worked to overturn Chevron and eliminate judicial deference to administrative agencies. As former White House counsel Don McGahn explained, their objective was “to corral the runaway bureaucracy to get judges in place who were actually going to read the law as […]

Prediction Markets allow you to “trade on anything” but does “anything” really mean anything? There is certainly some truth to their claim. Extraterrestrial enthusiasts can purchase a contract on Kalshi that will pay out if the government confirms aliens exist. Polymarket caters to the more spiritual among us, offering trades on whether Jesus Christ will […]

As noted on this blog, last month the D.C. Circuit issued an opinion in Centro de Trabajadores Unidos v. Bessent, which has gotten some attention for describing Loper Bright as “upend[ing] th[e] foundation” for challenges to changes in agency statutory interpretations. But a close examination of the point that the D.C. Circuit made reveals that […]

This week, the Supreme Court will hear oral arguments in Montgomery v. Caribe Transport, a major regulatory case. A quick way to estimate any case’s importance is to look at which groups are interested enough to submit amicus curiae (“friend of the court”) briefs. Based on this metric, Caribe Transport is a blockbuster, featuring amicus […]