In my prior posts and in a prior article, I’ve explained several circumstances where the IRS has rewritten Section 36B of the tax code, which offers tax credits to persons who purchase health coverage on an exchange established by a state. In this post, I want to discuss how the IRS has, out of thin […]

Last Monday, the Supreme Court decided Baker Botts v. ASARCO, a bankruptcy case about whether certain kinds of attorneys’ fees are available under the Bankruptcy Code. In deciding the case, did the Court tip its hand about the outcome in King v. Burwell, as some have speculated? Perhaps. On behalf of a six-justice majority, for […]

This post’s about a puzzling opinion from the D.C. Circuit. The puzzle has to do with the Chevron two step and legislative history. This puzzle’s important, and not just for King v. Burwell. In Council for Urological Interests v. Burwell (CUI), published last week and available here, the D.C. Circuit shuffled between one view and another […]

In my last two posts, I emphasized the relationship between regulatory capacity building, harmonization, and cooperation using examples from the CDC’s and USAID’s experiences in Liberia and Laos. Yet so far as global supply chains go, the FDA is now and since its establishment has been the most important agency with respect to both cooperation […]

Last week, the Supreme Court decided Mellouli v. Lynch, an immigration adjudication case raisingChevron issues. Chris Walker and Patrick Glen have written excellent posts on the decision here and here, but I thought I would add a few more thoughts. At issue in the case was the BIA’s interpretation of 8 U.S.C. § 1227(a)(2)(B)(i), which authorizes […]

In researching Section 4980H assessable payments, commonly referred to as the ACA employer penalty, I came across some potentially significant statements in IRS Notice 2011-36, dated May 23, 2011. The Notice, which reflects an official statement of the IRS, solicits public comments related to regulations under Section 4980H. In describing the statutory scheme, the IRS […]

If there are any tax attorneys in the courtroom today, I think they probably wrote down what you just said.” —Justice Alito, referring to Solicitor General Verrilli’s comments on the legislative grace canon. *              *               * In a few weeks, we can expect […]

CJW Note: In both academic and practitioner adlaw circles, there’s been chatter for a while about the constitutionality of the SEC using administrative law judges (ALJs) in its enforcement actions. On Monday a federal judge found such practice to likely be unconstitutional. One of my coauthors, Kent Barnett (UGa Law), has written extensively on ALJs (he’s quoted in the […]

The Dodd-Frank Wall Street Reform and Consumer Protection Act is coming up on its fifth birthday next month. Seldom has a law’s meaning been so little determined five years out from passage—especially a law running hundreds of pages. Dodd-Frank seems to frustrate everyone: Wall Street finds it massively burdensome and parts of it profoundly wrong-headed; […]

CJW Note: Last week I posted some preliminary reactions to the Supreme Court’s immigration adjudication decision in Mellouli v. Lynch. Patrick Glen, senior litigation counsel with the Justice Department’s Office of Immigration Litigation, sent me the following response, which he graciously has allowed me to repost here. The standard disclaimer applies: The views and opinions expressed […]

I am afraid that my defense of the law’s importance as a constraint in the case of Lehman Brothers, as against Peter’s charge that the Fed’s choice in that matter should be understood solely as a matter of internal institutional discretion, will give readers the misimpression that To the Edge is filled with examples of […]

I’ll return to my previously scheduled programming (about Treasury’s audacious money market fund rescue) next time, and spend this post returning Peter’s fire on the question of the Fed’s role in Lehman’s demise and clarifying what exactly we disagree about. We do have somewhat divergent views about the Fed’s crisis powers, but at some points […]

I’ve been very much enjoying Philip’s posts—I hope they have convinced our readers to buy his book and take his arguments seriously. One place where Philip helpfully sharpens our different views of law and the financial crisis is on the Fed’s controversial decision not to extend emergency lending to Lehman Brothers sufficient to stave off the […]

In a characteristically thoughtful post, Professor Richard Re examines whether the transfer of an increasing number of cases to Article I legislative courts could pose a threat to the Article III judicial power exercised by federal district courts. He writes in the context of Wellness International Network v. Sharif, which sanctioned some exercise of the […]