The ABA Admin Law Section is hosting a teleforum on Michigan v. EPA this Thursday, July 16 at 11:00 AM. Details on the program are available here. The program will feature Richard Revesz (NYU School of Law), Andrew Grossman (BakerHostetler), and yours truly. Adam White (Boyden Gray & Associates, Manhattan Institute) will moderate the discussion. […]
Daniel Deacon’s recent post and his essay in the Administrative Law Review raise several interesting – and potentially concerning, which is not to say wrong – points. Importantly, even though the vagaries of publication mean that his essay focuses on the FCC’s use of Section 706 to implement its Open Internet rules, whereas the FCC […]
As Chris Walker noted recently on Twitter, the latest issue of the Administrative Law Review was kind to Notice and Comment bloggers. My own contribution has to do with a new basis for the FCC’s jurisdiction over Internet Protocol-based networks and services. And that basis is not Title II of the Communications Act, which has […]
As has been discussed on this blog and elsewhere, Chief Justice Roberts’ majority opinion in King v. Burwell rejected the application of Chevron deference for the IRS’s construction of Section 36B. The meaning of the phrase “established by the State” was not something for the IRS to determine, because “had Congress wished to assign that […]
It was easy to overlook in the hubbub over the end-of-term cases, but the Supreme Court yesterday morning agreed to hear Gobeille v. Liberty Mutual, a case with significant implications for the states’ authority over the health-care sector. At issue in the case is whether Vermont can force health insurers—including employers that self-insure—to tell state […]
In Michigan v. EPA, the Supreme Court invalidated an EPA rule regulating power plant emissions of mercury and other pollutants. This post discusses the decision’s potential impact on cost-benefit jurisprudence generally. All nine justices endorsed the proposition that agencies have a general obligation under the Administrative Procedure Act to consider costs when deciding to regulate. […]
I’d like to chip in with some quick thoughts on recent, skeptical rumblings in the Court about deference to administrative agencies. What interests me most here is not the arguments separate Justices are making against deference—they are not new to administrative law thinking, though their return to judicial discussion is more novel. Rather, I’m wondering […]
Today, the Supreme Court issued its much-anticipated decision in King v. Burwell, holding that the Section 36B premium tax credit extends to taxpayers who acquire healthcare policies on federally established exchanges. The decision probably will not bear much on core tax provisions, but the Court’s reasoning could have major implications for the IRS’s administration of the […]
The majority in King v. Burwell surprised many observers by declining to grant Chevron deference to the IRS interpretation of the Affordable Care Act at issue. Instead, the Chief Justice’s opinion held thatChevron does not apply to questions that are of “deep economic and political significance.” This post does not analyze how this decision relates […]
Ok, I confess that the title to this post is a bit grandiose. At a minimum, we’ll have much more material on which to base our prognostications about the legality of the Clean Power Plan after Michigan v. EPA is decided on Friday or Monday. But I can’t resist accepting Chris Walker’s invitation to think for just […]
CJW Note: Over at SCOTUSblog, there’s a great symposium on King v. Burwell. I thought I’d cross-post, with permission, one of the contributions, by Adam White, that relates to my post yesterday about the effect of King v. Burwell on administrative law. Here is Adam’s post: As many have by now noted, Chief Justice John Roberts asked only […]
Today the Court handed down a 6-3 decision in King v. Burwell, upholding the Government’s regulation interpreting the Affordable Care Act to allow for tax subsidies in healthcare exchanges established by the Federal Government. This is a big win for the Obama Administration in a case that most felt could go either way after the […]
This morning I blogged about what the 6-3 decision in King v. Burwell means for administrative law (post here). Part of my conclusion there is that the Court’s decision in King chips away at the bright-line rule-based approach to Chevron deference—an approach Justice Scalia has championed—by reinvigorating the major questions doctrine. King, however, constitutes a major […]
Procedural requirements like the APA’s notice-and-comment process are often viewed as burdens on agencies to be avoided when possible. My new paper in the Administrative Law Review provides evidence for that view. But this view is not always correct (if it were, many questions in this area would be less interesting!). In some cases, agencies […]
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 […]