It never fails. You leave the country for a much-needed vacation and the Supreme Court drops an opinion you’ve been waiting for. On Tuesday, in Gobeille v. Liberty Mutual, the Supreme Court rebuffed Vermont’s effort to lift the veil of secrecy surrounding health-care prices. In an opinion by Justice Kennedy, the Court held that ERISA prevented […]
Here is the February 2016 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. I’m heading off to a symposium sponsored by the Missouri Law Review and organized by Erin Hawley, provocatively titled A Future Without the Administrative State?, […]
Over at Marginal Revolution, Tyler Cowen has a prescient (and scary) post on the “fear of regulatory reprisal from a Trump administration,” drawing on Philip Hamburger’s provocative book—Is Administrative Law Unlawful?—as well as Adrian Vermeule’s ingeniously titled review of the book:No. (Hamburger has since posted a nice parry entitled Vermeule Unbound, alluding to Posner and […]
“The Second Hoover Commission’s 60th Anniversary and Lessons for Regulatory Reform” The Hoover Institution — 1399 New York Ave. NW, Washington, D.C. On March 16, the ABA Section of Administrative Law and Regulatory Practice and the Hoover Institution will co-host an afternoon-long conference on the past, present, and future of regulatory reform, at the Hoover […]
The World Health Organization’s dismal handling of the Ebola outbreak has led to calls for sweeping reforms to the world’s system for managing infectious disease. The consensus view, though, is that we shouldn’t start from scratch. Laurie Garrett captures the prevailing wisdom in her incredible Foreign Affairs article on Ebola: The WHO performed so poorly […]
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 […]