Last week, the en banc Fifth Circuit, by vote of 9 to 7, issued an opinion holding that a provision of the Telecommunications Act of 1996 violates the nondelegation doctrine, creating a circuit split. The opinion spends four pages discussing my article A Critical Assessment of the Originalist Case Against Administrative Regulatory Power, 130 Yale L.J. 1288 (2021), and Philip Hamburger’s […]
Kristin Hickman, Dick Pierce, and I just finished the 2024 summer update to our federal administrative law casebook. As part of that process, we spent a fair amount of time discussing and structuring how we are going to teach statutory interpretation in our administrative law courses–at least for now—after Loper Bright eliminated Chevron deference. We […]
The Michigan Law Review is soliciting proposals for its annual book review for pieces “related to the recent (and ongoing) sea changes in administrative law.” From the request for proposal, which you can find here: This is a unique and expedited request—the call for Book Review submissions has closed for the year. However, the Editors […]
As Judge Griffith noted, it’s peak opinion-issuing season at the D.C. Circuit. The court issued 15 opinions last week, about 10 of which fall into the “admin law” category. So the recaps will necessarily be brief! Perhaps the most noteworthy decision came in Amazon Services LLC v. U.S. Dep’t of Agriculture, No. 22-1052, where the […]
The American Bar Association’s Section of Administrative Law and Regulatory Practice is pleased to sponsor the ABA Administrative Law Fellowship. The Fellowship, established in 2021, aims to diversify the cohort of legal academics in administrative law and regulatory practice by positioning lawyers currently in practice to be successful job candidates in the academic market. The […]
I’ve never been a fan of Chevron. In particular, I didn’t like the game-playing around step one or all the confusion about step zero or step two. Mostly I disliked the rigidity of Chevron. Assuming textual ambiguity of the statute, deference to an agency’s interpretation is sometimes warranted, sometimes not. As a result, I prefer the Skidmore approach which grants weight to the […]
In the first week of July, the D.C. Circuit issued five administrative-law opinions. First, in Evergreen Shipping Agency (America) Corp. v. Federal Maritime Commission, the court vacated an order that involved late fees for borrowed shipping containers. In April 2020, an ocean carrier (Evergreen) gave several loaded shipping containers to a trucking company (TCW) at […]
In November 2022, Attorney General Merrick Garland appointed Jack Smith as a special counsel to investigate former President Donald Trump’s attempts to stay in power after the 2020 election. Smith is currently prosecuting Trump in two separate cases, one in Washington, D.C., and the other in Florida. But the Florida prosecution was recently upended by Judge Aileen […]
Statutory mandates to establish minimum thresholds for hazards that pose an unquantifiable risk of harm put regulators in a bind. And the Supreme Court’s administrative law decisions this term have exacerbated the problem. Consider, for example, the FDA’s current struggle to regulate agricultural water quality. Fresh produce, once considered the healthiest of foods, has become a major […]
Chevron is dead, however deference may very well be alive. The majority in Loper Bright Enterprises v. Raimondo articulated no intelligible principle of deference other than tacit acknowledgement of Skidmore deference and potentially laying the path for de novo review. Nonetheless, some scholars have acknowledged that lower courts may function in fundamentally similar ways when […]
From the website of the Administrative Conference of the United States: The Administrative Conference of the United States (ACUS) is pleased to announce a public forum, Recent Administrative Law Developments in the Supreme Court: What’s Next for Agencies? Across four virtual panels beginning next Tuesday, July 30, ACUS members and researchers will discuss the significance of recent Supreme Court […]
An internal rule of the D.C. Circuit encourages the circulation among the panel of all opinions for the previous term by August 15 of each year. Which means that July and early August can be stressful times in chambers. They certainly were in mine because, try as I might, I never mastered the skill of […]
The Supreme Court’s recent decision in SEC v. Jarkesy seems destined to upend much federal regulatory enforcement. A further potential consequence may be coming for state enforcement. Whether state regulatory programs are vulnerable to a Jarkesy limitation depends on whether Jarkesy depends solely on the Seventh Amendment, or is a collaboration between the Seventh Amendment and Article III. Jarkesy dealt […]
Donald Trump thankfully survived an assassination attempt last weekend and may well win back the presidency in November. What constitutional theories might a second Trump administration advance? Trump himself has suggested one possibility: He has promised to assert a “Constitutional power to stop unnecessary spending through what is known as Impoundment.” In other words, a second-term President Trump would […]
Pacific Legal Foundation and the Georgetown Journal of Law & Public Policy seek papers for a symposium titled “The Future of Agency Adjudication after SEC v. Jarkesy” to be held in Washington, DC in winter 2025. Details from the announcement are excerpted below.