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 […]
The American Journal of Legal History has just published a special issue on “histories of executive power,” including a paper by Aaron Nielson and me entitled The Early Years of Congress’s Anti-Removal Power. These papers were first presented at a Stanford Constitutional Law Center conference, organized by Michael McConnell and Jed Shugerman, in May 2022. […]
When I first joined the legal academy (a dozen years ago), one of my first conferences in the field was the ABA Administrative Law Section’s annual conference, which is held in each fall. We’d gather together in Washington, DC, with more than five hundred administrative law geeks, including so many legal scholars. It was the […]
Today, Punxsutawney Phil predicted an early spring. Had he looked at the D.C. Circuit Opinions page, he might well have concluded that it was early fall—a time when the term is only beginning, and the flow of opinions slows to a trickle. Last week saw only one opinion* released, and this week promises to be […]
From the Federalist Society’s website: In his recent book Why Congress, Dr. Phillip Wallach covers the past, present, and future of the Legislative branch to help measure its modern level of dysfunction and offer suggestions for future restoration. The book traces how Congress was designed to operate, how it has met the challenges of decades past, […]
Join the ACUS Team The Administrative Conference of the United States (ACUS) is actively recruiting up to two experienced attorney advisors to join our dynamic team of administrative law practitioners. The ideal candidate must have at least five years of professional experience working in the fields of administrative law or regulation (qualifying for a Series […]
With the Supreme Court hearing arguments in Garland v. Cargill this term, the Court has been asked to decide the narrow question of whether a bump stock device is a “machinegun” as defined in the National Firearms Act.[1] However, embedded within the case is an issue that raises broad administrative law questions about how the rule of lenity […]
During the week of January 15, the D.C. Circuit issued two opinions. In In re: Search of Information Stored at Twitter, Inc., the D.C. Circuit denied a petition for rehearing en banc filed by Twitter (now known as X). In November 2022, Special Counsel Jack Smith was appointed to investigate President Trump’s efforts to overturn the […]
Today’s Ad Law Reading Room brings you not one, not two, but three entries (don’t worry, they are short, at least by law review standards). Back in October, the George Mason Law Review held a symposium on the future of Chevron. Three of the included articles tackled what judicial review of agency action would (or […]
The ABA Section of Administrative Law and Regulatory Practice is seeking nominations for leadership positions on our governing council. Please help us continue our legacy by nominating brilliant thoughtful lawyers with diverse views, perspectives, backgrounds, and roles in the field of administrative law. A nomination can be as simple as a few sentences. That said, […]