In a forthcoming law review article, Richard Revesz and I contend that agencies should preemptively rebut challenges under the major questions doctrine by drawing parallels to past agency actions. A recent federal regulation offers a template for this analysis. In its pollution standards for new vehicles issued last week, the Environmental Protection Agency extensively responded to claims that […]
In the Trump era, I made several posts that explored how separation-of-powers principles might protect the President from prosecution, regarding his alleged interference with Department of Justice investigations. I have now written a longer piece, The President’s Criminal Immunity. The abstract is below: This Essay addresses a monumental question that the Supreme Court will soon […]
The D.C. Circuit issued just one opinion this past week, holding that the Postal Regulatory Commission, on remand from a prior decision of the D.C. Circuit, had adequately addressed the issues identified in the prior decision. The case is United Parcel Service, Inc. v. Postal Regulatory Commission, No. 23-1006, and the decision was written by […]
Cherry blossoms are starting to bloom here in Washington, D.C., which can mean only one thing in the ACUS-sphere: Spring Committee season has begun! Read on to learn more about the projects that will be coming before ACUS committees this spring, when committees will convene to consider them, and how our recent website redesign has […]
In SEC v. Jarkesy, the Supreme Court is poised to hold that whenever the SEC seeks to impose monetary penalties on enforcement targets for securities fraud, it must proceed in federal court and not inside its own administrative forum. Many observers predict such a holding would significantly impact SEC enforcement. But maybe not. In a new paper, […]
Today’s Ad Law Reading Room entry is “FDA Leads, States Must Follow,” by Catherine M. Sharkey and Daniel J. Kenny, which is forthcoming in the Washington University Law Review. Here is the abstract: As deference to administrative agencies has steadily come under attack, the FDA is a desert oasis. Courts have long deferred to the […]
The Judicial Conference of the United States recently directed federal district courts to assign cases that seek broad relief, such as a challenge to a federal regulation, randomly on a district-wide basis. The judicial conference’s guidance follows similar statements by the American Bar Association, proposals to amend the federal rules, and proposed legislation. In any other era, this minutia of […]
The D. C. Circuit handed down only one opinion this past week. On Tuesday, the court issued its opinion in Samark Lopez Bello v. Andrea Gacki, No. 23-5036, written by Judge Henderson and joined by Chief Judge Srinivasan and Senior Judge Randolph. The court affirmed a decision of the Office of Foreign Assets Control (OFAC), a part […]
It looks like articles from the Spring 2024 law review submissions cycle are just starting to make it onto the list, and I’m excited to see what more appears in the coming months. Here is the February 2024 Edition of the most-downloaded recent papers (those announced in the last 60 days) from SSRN’s U.S. Administrative Law eJournal, […]
Gun rights’ advocates often quip “The Second Amendment protects the other nine.” Now, the National Rifle Association is hoping in two separate, but related cases that the First Amendment will protect it from what it claims is the State of New York’s unlawful regulatory and administrative enforcement. On March 18 the Supreme Court will hear NRA […]
It is widely believed that social media is, at least in part, responsible for the deteriorating mental health of America’s adolescents and teens. Politicians have taken notice, and in an election season they are keen to score points with voters back home. Yet, succumbing to the pressure to do something by November risks ill-formed legislation. Such is the […]
The SEC Chair has stated that in his view, the “vast majority” of cryptoassets are securities, meaning that these products—and market participants—are subject to the federal securities laws and SEC rules.[1] This poses a conundrum: Compliance with aspects of the securities laws and existing SEC rules is not attainable for cryptoasset securities,[2] absent further regulatory or […]
The D.C. Circuit decided one administrative law appeal last week.* In American Forest Resource Council v. Williams, AFRC challenged two rules postponing the effective date of a U.S. Fish and Wildlife Service rule that would have reduced the amount of land designated as critical habitat for an endangered species of spotted owl. The Service published […]
The following is a list of the Administrative Law topics in pending and decided cases so far in the Supreme Court’s October 2023 Term. I made this list for the admin law class I teach this spring at the University of Illinois Chicago because students expressed strong interest in class topics currently at the Court, […]
There is much hubbub over the major questions doctrine. For good reason. The Supreme Court has lately invoked the doctrine to invalidate sweeping regulatory initiatives, such as the EPA’s Clean Power Plan, OSHA’s workplace vaccine mandate, and the CDC’s eviction moratorium. There is now a cottage industry of law reviews trying to make sense of […]