In Validus Reinsurance Ltd. v. United States, the D.C. Circuit addressed the potential conflict between Chevron and the presumption against the extraterritorial application of statutes. In that case, a foreign company, Validus, reinsured other insurance companies’ policies. Validus then sought protection for its own reinsurance risks, and it purchased reinsurance from other foreign companies. The D.C. […]
Sara Rosenbaum and Tim Westmoreland have an interesting new piece out at the New England Journal of Medicine on the Patient CARE Act, a Republican proposal to transform Medicaid into a block grant program (among other things). Not only is the Patient CARE Act bad policy, they argue, but the move to block granting could […]
Agency use of guidance documents (defined here as agency rules issued as either interpretive rules or policy statements) has been hot topic in administrative law lately. The Supreme Court recently rejected a D.C. Circuit doctrine that was intended at least in part to deter agency abuse of guidance. Several justices have expressed an interest in reducing […]
In my last post, I observed that there was a dilemma posed by the current system of producing and moving medicines and vaccines from the developed, wealthy countries of North America, Europe and the Pacific Rim to low-resource countries in Asia, Africa and South America. The public health urgency of distributing medicines and vaccines often […]
I might be accused of picking at low-hanging fruit, but I’d nonetheless like to devote another blog post to more IRS regulations that expand and contradict Section 36B. My prior blog posts, which I’ve adapted into an essay upcoming in Bloomberg BNA, discuss regulations that improperly extend ACA premium tax credits to persons in the […]
As Andy Hessick noted a few posts back, the Supreme Court recently granted cert in an important energy law case. FERC v. Electric Power Supply Association deals with FERC’s attempt to create a demand response program at the wholesale level. This is an issue that I’ve blogged about before; other scholars have written some great […]
Last week, Will Baude published a column in the New York Times, available here, arguing that the Court should postpone deciding Zivotofsky v. Kerry, a case already argued this term, until it decidesSpokeo v. Robins, which is slated for next term. The two cases seem quite different. Zivotofsky is about Congress’s and the President’s power […]
Administrative agencies regularly interpret statutes in the course of rulemaking, but there is little data about how they go about interpreting those statutes. Do the rulemakers rely on canons of interpretation? Do they look at legislative history? These questions are important for many reasons, one of which is whether agencies act as faithful agents of […]
Before it collapsed, Lehman Brothers engaged in various tax-motivated transactions, including ones to earn foreign tax credits. Last week, a federal judge addressed the merits of one of those controversies, holding against the defunct bank. The court tucked in a footnote a potentially interesting twist on agency deference. It noted that a so-called IRS Advisory […]
I’ve been toying with an idea that might allow the Obama administration, in the event that it loses in King v. Burwell, to keep subsidies flowing to residents in some of the 34 states that declined to create an exchange. What if HHS declared that any state that performs substantial, ongoing, and essential exchange functions […]
Even if you are an armchair observer of the federal courts, or a nuclear policy nerd, it’s unlikely that you caught wind of a mid-April decision out of the Court of Federal Claims in the case of System Fuels, Inc. v. United States (decided Apr. 15, 2015). In fact, even if you had, you’d be […]
Here is the April 2015 edition of the most-downloaded recent papers (those announced in the last 60 days) from SSRN’s U.S. Administrative Law eJournal, which is edited by William Funk. For more on why SSRN and this eJournal are such terrific resources for administrative law scholars and practitioners, check out my first post on the subject here. […]
On May 4, the Supreme Court granted certiorari in FERC v. Electric Power Supply Association (and a companion case). The case raises the question whether FERC exceeded its authority in issuing a regulation that gives retail energy customers incentives to reduce electricity consumption. The Federal Power Act (“FPA”) grants FERC the power to regulate the […]
The Government is likely to prevail in King v. Burwell if its interpretation of the Affordable Care Act receives Chevron deference. This raises an important question: what influences when Supreme Court justices grant Chevron deference to agencies? Prof. Bill Eskridge and I examined this question in a paper that examined all Supreme Court cases from […]
Microsoft Corp. has recently challenged the enforcement of IRS summons regarding some of its international tax planning, arguing that the IRS has flouted the law by allowing Quinn Emanuel Urquhart & Sullivan to participate in an audit of the company. The dispute raises many fundamental questions that a district court has been asked to answer. […]