During the week of June 19, the D.C. Circuit issued three opinions. In Heating, Air Conditioning & Refrigeration Distributors International v. EPA, the D.C. Circuit vacated part of an EPA rule that regulated hydrofluorocarbons—highly potent greenhouse gases used in fridges, freezers, and air conditioners. In 2020, Congress enacted the American Innovation and Manufacturing Act, which […]
The Notre Dame Law Review hosts an annual symposium on Federal Courts, Practice & Procedure, and this year’s symposium was on the History of the APA & Judicial Review. The event was held in January 2023 at Notre Dame Law School and the print volume, which has just been published, offers a terrific set of […]
The Supreme Court’s decision in United States v. Texas partly resolves an immeasurably important question in American immigration law. Can the Executive Branch use prosecutorial discretion to deport some immigrants, but not others? The practical answer is: Yes. Prosecutorial discretion lives. Specifically: States do not have standing to block the Biden Administration from prioritizing the arrest and […]
After taking time off for its first judicial conference since COVID and to celebrate Independence Day, the D. C. Circuit issued a flurry of opinions last Friday that are hastily summarized here. In American Gas Public Gas Association v. Department of Energy (APGA II), No. 22-1107, the Court held for a second time that the […]
The Supreme Court’s recent decision in Biden v. Nebraska marks a new chapter in debates about the major questions doctrine (MQD). Writing for a six-Justice majority, Chief Justice Roberts relied partly on the MQD to find that the Biden Administration’s loan forgiveness program lacked statutory authority. Justice Kagan’s dissent criticized the MQD as “made-up” and antidemocratic. And […]
Today’s Ad Law Reading Room entry is “In Search of the Public Interest,” by Jodi L. Short, which was recently published in the Yale Journal on Regulation and posted to SSRN. Here is the abstract: “Public interest” standards in statutory delegations to agencies represent the greatest hopes and the darkest fears of the U.S. administrative […]
The major questions doctrine seems to know no bounds. In Biden v. Nebraska, the Court blew past what should have been fatal objections to the States’ standing and launched a broader-than-ever version of MQD when invalidating the Biden administration’s loan forgiveness under the HEROES Act. Last term, the Court held that MQD checked substantive statutory authorizations. In Biden v. […]
Next term the Supreme Court will hear argument in CFPB v. Community Financial, which concerns whether the Consumer Financial Protection Bureau (“CFPB”) may constitutionally receive its funding from the Federal Reserve, rather than through the annual appropriations process. The case presents the Court an opportunity to address an important point made earlier this summer by Justice Thomas in a dissenting […]
In Chewy v. U.S. Department of Labor, 69 F.4th 773 (11th Cir. May 30, 2023), an Eleventh Circuit panel reversed the Occupational Safety & Health Administration’s (“OSHA”) imposition of a penalty upon an employer under the general obligation to ensure worker safety. The case involved the use of forklifts in proximity to shelving. In such […]
My goal in this essay is to explain why the Major Questions Doctrine (MQD) has become such a powerful tool to the Supreme Court’s conservative majority and why it seems to be replacing, along with the unitary executive theory, the nondelegation doctrine as one of the primary means of constraining congressional and administrative power. What the […]
The administrative law headline for the past week is that the Supreme Court has again invoked the Major Questions Doctrine to hold agency action unlawful—this time, President Biden’s student loan forgiveness program. In a separate opinion, Justice Barrett offers a thoughtful explication of that doctrine. In her view, it merely “emphasize[s] the importance of context […]
As many of you know, the Supreme Court just shot down the student-loan forgiveness plan in Biden v. Nebraska. The majority opinion written by John Roberts predictably held that the HEROES Act does not empower the Secretary of Education to cancel loans on the scale envisioned by the Biden Administration. In a separate subsection (see pgs. 19–25 […]
Putting aside for the moment the possibility of the Supreme Court overruling Chevron U.S.A., Inc. v Natural Resources Defense Council, 467 U.S. 837 (1984) (“Chevron”), in the coming term the Supreme Court will hear argument on and consider, in the case of Loper Bright Enterprises v. Raimondo (“Loper”), whether the Court should “clarify that statutory silence concerning controversial powers […]
*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here. It has been a pleasure to read the thoughtful commentary from scholars and practitioners in this Notice & Comment blog series on modernizing regulatory review. The contributions provide a range of important critiques and recommendations to inform […]
*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here. The contributions to this symposium illuminate many important aspects of the Biden Administration’s push to “modernize” regulatory review. One big innovation of that push is injecting international considerations into that process more than ever before. Executive Order 14,094 and […]