The often-fuzzy distinction between “rules” and “adjudications” jumped to the foreground recently following the Trump Administration’s submission of several EPA “waivers” of Clean Air Act preemption for state electric-vehicle mandates to lawmakers under the Congressional Review Act (“CRA”). The Biden EPA had elected to not submit these actions for review, claiming in a December 2024 […]

The consumer welfare standard has been the lodestar of antitrust policy for decades.  Yet after the election of President Joe Biden and rise of the Neo-Brandeisian movement, the Department of Justice and the Federal Trade Commission often dismissed the consumer welfare standard and instead attempted to use antitrust to achieve other progressive societal goals such […]

When the Supreme Court overturned the Chevron doctrine in Loper Bright Enterprises v. Raimondo, it purported to leave intact the holdings of cases decided under Chevron. Chief Justice Roberts wrote that “we do not call into question prior cases that relied on the Chevron framework. The holdings of these cases that specific agency actions are lawful—including […]

The U.S. DOGE Service seems to be everywhere these days—at eighteen agencies and counting, according to reports. “USDS” or “DOGE” has reportedly driven many of the Trump administration’s most controversial actions, including the administration’s efforts to slash federal spending and disrupt the civil service. And yet substantial questions remain as to what, exactly, USDS is: […]

Since the Supreme Court announced the arrival of the major questions doctrine in West Virginia v. EPA in 2022, federal appellate courts have struggled to apply the doctrine’s amorphous standards with any consistency both across and within circuits. Perhaps no court better demonstrates this problem than the U.S. Court of Appeals for the Fifth Circuit. […]

In U.S. v. Arthrex, the Supreme Court in an opinion by Chief Justice Roberts held that administrative patent judges (APJs) were not inferior officers for purposes of the Appointments Clause since their decisions were not reviewable by any executive branch officer.  While the result in the case may very well accord with the Constitution’s original […]

I’m so excited that the University of Michigan Law School will be hosting the Federalist Society’s 44th annual student symposium here in Ann Arbor on March 7-8, 2025. The symposium theme is Congress: Reviving the Impetuous Vortex, and the program is going to be terrific. You are welcome to join us on in person or […]

The ABA Section of Administrative Law & Regulatory Practice is pleased to announce its 2025 Spring Conference will again include a day of in-person academic paper workshops at the Royal Sonesta Capitol Hill in Washington, DC, on Thursday, May 8th, 2025. The workshops will provide the selected participants with an opportunity to receive useful feedback […]

Here is the January 2025 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 Bill 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. You can […]

Since the inception of his second term, domestic media has reveled in criticizing President Trump’s every act, from policy decisions to his executive orders. Their latest target of ire is his proposed tariffs against Mexico, Canada, and China aimed to address undocumented immigration and curb the inflow of fentanyl. For instance, the Associated Press asked: […]