From the Wall Street Journal: Congressional Republicans are warning the Obama administration not to settle with insurers that have sued the government over an Affordable Care Act program to compensate them for losses under the law, saying such a move would bypass spending limits set by Congress. I get what the Republicans are doing here. […]
Today the Center for Compliance Studies at Loyola University Chicago School of Law is hosting a terrific conference entitled Complying with Law. Here’s the description from the conference website: The Loyola University Chicago Journal of Regulatory Compliance will host a one-day symposium to launch its inaugural issue and the establishment of the Center for Compliance Studies. […]
The big(-ish) news this week is that Judge Pillard will participate in the en banc “Power Plant Rule” argument next Tuesday. (Chief Judge Garland still is recused.) We don’t know why she was recused before or why she is not recused now. But that is par for the course; often the reasons for recusals are […]
Our symposium on Seminole Rock deference has now come to an end. I will take a few moments, however, to thank all of the participants. By my count, 30 different contributors posted as part of this symposium. We are fortunate that so many folks, with so many different perspectives, were willing to take the time […]
Are you looking for an additional way to stay on top of developments in administrative law? Well, you’re in luck! The ABA Section of Administrative Law and Regulatory Practice just released its seventeenth edition of Developments in Administrative Law and Regulatory Practice, covering developments in the field during the 2015 calendar year. The paperback, now […]
“[I]t is emphatically the province and duty of the Judicial Department to say what the law is.” These simple, straightforward words constitute Chief Justice John Marshall’s foundational definition in Marbury v. Madison of “the judicial Power” that the Constitution vests in the federal courts. Repeated in countless court decisions, law review articles, and civics textbooks, […]
The Separation of Powers Restoration Act, or more easily known as SOPRA, is not a complicated bill. If enacted, it would amend the Administrative Procedure Act to require courts to decide de novo all questions of law, whether constitutional, statutory, or regulatory. As the House Report makes abundantly clear, the intent is to overrule statutorily […]
To some, Auer deference stands apart from the rest of administrative law. On the one hand, Auer is distinguished from other forms of deference as uniquely constitutionally problematic, because it grants agencies deference for their own interpretations of their own regulations. This, according to Justice Scalia (accepting an argument raised by his former law clerk, […]
In 1951, when Kenneth Culp Davis published his first comprehensive study of administrative law under the newly enacted APA, he explained that the deference courts give interpretative rules necessarily depends on a range of factors, from “the relative skills of administrators and judges in handling the particular subject matter” to “the extent of judicial confidence […]
Predictions are hard, especially about the future. It’s much safer to hide behind a broad trend: There was a time, just a couple of years ago, when it seemed like Auer and Seminole Rock were not long for this world. Auer’s author, Justice Scalia, turned his back on the doctrine. The tide of scholarly opinion—led […]
It’s no secret that some people have misgivings about the administrative state—including, most notably, the Chief Justice of the United States. In fact, Chief Justice Roberts believes that the administrative state—with its “‘vast and varied federal bureaucracy’”—presents a “danger” that “cannot be dismissed.” Although “it would be a bit much” to condemn today’s regulatory scheme […]
There is no question that there are both weighty constitutional concerns and practical problems with the Seminole Rock doctrine that impede the achievement of consistency, fairness and transparency in our modern administrative state. These concerns coupled with the confusion and inconsistencies in the lower courts when they attempt to apply Seminole Rock’s “plainly erroneous or […]
For decades, the Supreme Court of Utah reviewed agency action under either express or implicit “delegations of discretion” for abuse of discretion. This approach “proved difficult to apply” and resulted in widely inconsistent decisions that depended on whether a court found that a statute granted an implicit delegation of power. So in 2013 the Utah […]
(This post is adapted from The Unbearable Rightness of Auer, U. Chi. L Rev. forthcoming) For more than seventy years, courts have deferred to reasonable agency interpretations of ambiguous regulations. The Auer principle, as is it is now called, has attracted academic criticism and some skepticism within the Supreme Court – although we will see the […]
Seminole Rock (or Auer) deference requires courts to defer to an agency’s interpretation of its own regulation “unless that interpretation is plainly erroneous or inconsistent with the regulation.” Decker v. Northwest Environmental Defense Center, 133 S. Ct. 1326, 1337 (2013). Courts will defer even when the agency’s interpretation is not “the only possible reading of […]