An essay by John McGinnis, “The Rise and Fall of Chevron,” recently caught my eye. McGinnis, now a professor at Northwestern, writes that as a summer legal intern he assisted Deputy Solicitor General Paul Bator in writing the government’s brief in Chevron U.S.A. v. Natural Resources Defense Council back in 1983. Though we’ve never met, I felt a […]
Last month, the Supreme Court heard oral arguments in Loper Bright Enterprises v. Raimando and Relentless Inc. v. Department of Commerce, both of which asked the Court to overrule Chevron. By overruling Chevron, what the parties are really asking is that the Court overrule the two-step test from the beginning of the case, not that the Court overrule the final holding that […]
Last week the D.C. Circuit decided just one case on a relatively narrow issue. In a short nine-page opinion in Abreu v. Howard University, the panel (Wilkins, Katsas, Rogers) held that the same three-year statute of limitations that applies (at least in the District of Columbia) to civil rights claims under Title VI of the […]
On Wednesday, the Supreme Court heard oral arguments on a set of stay applications, consolidated under the caption Ohio v. EPA, that ask the Court to block the Environmental Protection Agency’s Good Neighbor Rule. The rule sets out requirements for 23 upwind states to meet their obligations under the Clean Air Act not to contribute to […]
Last week’s opinions from the D.C. Circuit were for all of us who love federal courts law. Bohon v. FERC was a case that the Supreme Court sent back to the DC Circuit for reconsideration after Axon Enterprise, Inc. v. FTC. New day, same case, same result: the DC Circuit reinstated its judgment that Section […]
For a half-century, cost-benefit analysis has been a mainstay of the regulatory state. Presidents of both parties have either promulgated or retained executive orders mandating regulatory cost-benefit analysis. Many have sought to expand its scope. While so much about regulatory law and policy polarizes the two parties, cost-benefit analysis finds support among Republicans and Democrats alike. […]
How should courts review the president’s statutory powers? It’s one of the most vexing questions in administrative law. It’s easiest to state the problem by comparing the president and agencies as delegees of legislative authority. Usually, Congress delegates regulatory authority to administrative agencies. Sometimes, however, Congress delegates directly to the president. Here, each is an […]
The Supreme Court recently heard oral argument in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, and so the administrative law world is (especially) abuzz about the possible imminent demise of Chevron deference. Wrapped up in the conversation is the future of a related case, Brand X, in which the Supreme […]
Today’s Ad Law Reading Room entry is “Not-So-Special Solicitude,” by Katherine Mims Crocker. Here is the abstract: In a high-profile case last term about state standing to sue in federal court, Justice Gorsuch deemed it “hard not to wonder why” the majority said “nothing about ‘special solicitude.’” The silence was indeed surprising, for in a […]
No admin law decisions at the D.C. Circuit this week. The big news, needless to say, was the decision in USA v. Trump, No. 23-3228, in which the court (Judges Henderson, Childs, and Pan) held that “any executive immunity that may have protected [Trump] while he served as President no longer protects him against this […]
Later this month the Supreme Court will hear First Amendment challenges to two state laws that regulate the content policies of large social media platforms. NetChoice v. Paxton involves a 2021 Texas statute that makes it unlawful for platforms to restrict content based on “viewpoint.” Moody v. NetChoice, meanwhile, involves a 2021 Florida law that prohibits most moderation of […]
I. Introduction The recent Supreme Court oral arguments in Loper Bright and Relentless demonstrate the potential dire public health consequences of overruling the Chevron doctrine. The Food and Drug Administration (FDA) relies on broad judicial deference granted by Chevron, with the primary goal of utilizing scientific and clinical expertise to protect the health and safety of the public. Through implementation of the Federal […]
If one has enough resolve, one should always be able to find “ascertainable standards” embedded in a regulatory statue. Ascertainable standards are both (1) policy objectives that the regulatory agency must use in its decision-making, including rulemaking, and (2) what a reviewing court will use when determining if the agency has acted in an “arbitrary and […]
In a recent article, FCC Commissioners Brendan Carr and Nathan Simington interpreted constitutional protections of Texas Law HB20. They describe social media platforms as “dominant” with “market power,” similar to the appellate courts and parties in the NetChoice cases.[1] As economists, my colleagues and I filed an amicus brief in support of neither party in these cases to clarify these economic […]
The D. C. Circuit held no arguments and issued no opinions last week. While all await the decision of the panel in United States v. Donald Trump, No. 23-3228, whether former President Trump is immune from criminal liability for acts taken while president, (articles speculating about the timing can be found here and here), this […]