In a NYTimes op-ed, Professor Will Baude argues that the Obama Administration can easily avoid any adverse decision in King v. Burwell by limiting the case to the particular persons in front of it. That is, the administration won’t collect penalties from the challengers but can continue to provide tax credits for policies purchased on […]

The always-interesting Will Baude has a provocative piece on King v. Burwell at the New York Times. As he sees it, the Obama administration has an ace up its sleeve when it comes to avoiding the fallout of an adverse decision. [L]uckily the Constitution supplies a contingency plan, even if the administration doesn’t know it […]

Welcome back. In my previous post, I struck up a conversation with—well, with an italicized version of myself. It’s a conversation about the EPA’s Clean Power Plan, which is a really Big Deal. Yeah, you said that last time, but I’m still not clear why it’s such a Big Deal. You left off by saying […]

In a characteristically provocative opinion, Justice Scalia, concurring in Perez v. Mortgage Bankers, expressed skepticism over Chevron deference. He suggests that Chevron does not comport with the APA’s directive that “the reviewing court” decide questions of law and that Chevron goes beyond the historic level of deference accorded agency interpretations. Putting aside issues of stare […]

Eric Lindblom, a Senior Scholar at Georgetown Law School’s O’Neill Institute for National & Global Health Law, has published an important new article entitled Effectively Regulating E-Cigarettes and Their Advertising – and the First Amendment in the Food & Drug Law Journal. (Full disclosure: Lindblom was my supervisor when I worked at the FDA Center […]

Step aside, Affordable Care Act. If you aren’t already, get used to hearing about the Clean Power Plan. Perhaps the most ambitious regulatory effort ever put forward by the EPA, the Plan represents the largest, farthest-reaching component of the Obama Administration’s response to greenhouse gas (GHG) emissions and climate change. So far, we’ve only seen […]

This is the second in a three-part series on Fed governance. The first is here. In the first post in this series, I discussed some of the problems I see in the governance structure of the Federal Reserve Banks. At the Brookings event where I laid out some of these arguments, my respondent was former […]

This is the first of three posts on recent developments in the governance of the Fed.  My apologies to any regular readers—who might consist only of my wife and mother—for the long break from blogging. To compensate, I’m going to write a three-post series on some recent discussions of the Fed and its governance. Today, […]

During oral arguments in King v. Burwell, Justice Alito referred to a few issues that have been covered on this blog. For now, I’d like to focus on his question regarding a potential stay of any government-adverse decision. Regarding the stay, Justice Alito asked Solicitor General Verrilli whether a holding for the petitioner would wreak […]

In parsing Justice Kennedy’s comments about federalism from oral argument in King yesterday, it’s important to notice that federalism principles could affect the outcomes in two very different ways. Most of Kennedy’s comments suggested that threatening the states with the loss of tax credits and the destruction of their individual insurance markets would be unconstitutionally […]

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 […]

Given the Chief Justice’s near-silence at oral argument in King v. Burwell yesterday, much will be made of Justice Kennedy’s sensitivity to the argument that accepting the plaintiffs’ interpretation of the statute would raise serious federalism concerns. That’s completely appropriate. But I want to call attention to a different question that Kennedy asked the government’s […]

For all the sound and fury from federalism scholars over the Supreme Court’s recent decision in FTC v. North Carolina Board of Dental Examiners, one might have thought that the Supreme Court had sounded the death knell for states’ ability to protect favored industries from market competition. But while North Carolina must now actively supervise […]