Justice Elena Kagan has many talents, one of which is asking sharp questions at oral argument. For instance, one of my favorite moments as a litigator came, in a case about raisins, when Kagan asked these questions to the attorney for the United States: (1) “[B]efore you do that then [i.e., get to his prepared […]
A lot of attention these days has been focused on prosecutorial discretion in the administrative law context—the scope of the Executive Branch’s authority to not enforce the law. We recently had a week-long online symposium about it in the immigration context, with a particular focus on the pending Supreme Court case challenging the Obama Administration’s […]
From the Portland Tribune: Health Republic Insurance Company of Oregon, a Lake Oswego-based insurer that is phasing down its operations, on Wednesday filed a $5 billion class action lawsuit on behalf of insurers it says were shorted by the federal government under an Obamacare program. The lawsuit, filed in the United States Court of Federal […]
At the ABA’s Mid-Year Meeting on February 8, the House of Delegates approved a list of recommended changes to the Administrative Procedure Act (APA) submitted by the Section of Administrative Procedure & Regulatory Practice. This was an important development for the Section because of the centrality of the APA to what we do. It was […]
After more than six years of work, my book The Power and Independence of the Federal Reserve was recently published by Princeton University Press. I’ll be blogging on its content in the weeks ahead, so I won’t pregame those posts here. Instead, I wanted to discuss a topic that might be of interest to some […]
Among the many reasons for mourning Justice Scalia’s untimely passing (on which I’ve written at length elsewhere) is the fact that his death abruptly cut short his late-career reconsiderations of the administrative state. As Aaron Nielson observes, recent years had seen Justice Scalia expressing serious doubts about judicial deference to agency interpretations of their own […]
As highlighted by Professor Bagley on this blog last Friday, the D.C. Circuit’s recent opinion inAmerican Hospital Association v. Burwell offers an intriguing look at a complex problem facing the Medicare program—and the health care providers and suppliers wrapped up in its dramatically backlogged appeals system. Professor Bagley’s excellent post neatly articulates the complicated issues […]
A central premise in administrative law is that federal judges lack the democratic legitimacy of executive branch officials. As Justice Scalia put it in City of Arlington v. FCC, “unelected . . . federal judges” are “even less politically accountable” than “unelected federal bureaucrats.” A similar sentiment suffuses Justice Stevens’s opinion for the court in […]
The D.C. Circuit issued no opinions this week. Especially with this extra time, it is fitting to take a few moments to reflect on the “admin law” legacy of Justice Scalia, a former administrative law professor and surely one of the most important and talented jurists in the history of the Supreme Court. Justice Scalia […]
The D.C. Circuit has released a fascinating opinion about the total meltdown of Medicare’s system of internal appeals. The case brings to mind the old paradox of the irresistible force and the immovable object: it’s genuinely vexing and about as difficult to solve. As I explained eighteen months ago, Medicare’s got a big problem on […]
After an extended hiatus and by (somewhat) popular demand, I’m bringing back the weeklyAdministrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. I have a backlog of a few dozen pieces I’d love to highlight, and these reviews […]
The betting website PredictIt now puts the odds of Donald Trump winning the White House this November at 22%. I don’t think that estimate is too far off: Trump is ahead in virtually every recent Republican primary poll, and he trails Hillary Clinton by 3.4 percentage points in a general election matchup (according to the […]
On December 21, 2015, the National Institute of Standards and Technology (NIST) transmitted to Congress a strategy for U.S. Government engagement in international standardization for cybersecurity. Development of such a strategy was required by the Cybersecurity Enhancement Act of 2014, which tasked NIST to work with relevant federal agencies to ensure interagency coordination in “the […]
Today is a sad day for the United States. My favorite memory of Justice Scalia involves Halloween. I don’t know if the Supreme Court does this every year, but when I was there as a law clerk, the Supreme Court invited all the children of clerks to trick-or-treat from chambers to chambers. My kids were […]
The U.S. Supreme Court reminded the world this week that while the D.C. Circuit may be the nation’s “second most important court,” the Supreme Court remains the first. In particular, the Supreme Court decided to stay the EPA’s Power Plant Rule, even though a motions panel of the D.C. Circuit (Judges Henderson, Rogers, and Srinivasan) […]