*This is the seventh post in a symposium on Peter Shane’s “Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency.” For other posts in the series, click here. In West Virginia v. EPA, the Supreme Court struck down Obama’s signature climate regulation based on the major question doctrine. The Court’s rationale was […]
*This is the sixth post in a symposium on Peter Shane’s “Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency.” For other posts in the series, click here. In Democracy’s Chief Executive, Peter Shane provides powerful critiques of originalism and unitary executive theory, and he recognizes that this interpretive methodology and substantive […]
*This is the fifth post in a symposium on Peter Shane’s “Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency.” For other posts in the series, click here. In Democracy’s Chief Executive, Peter Shane skillfully exposes the partisan beginnings and baleful effects of originalism as a theory for understanding the constitutional separation […]
The D.C. Circuit issued no published opinions this week.* Accordingly, this seems like a fine time to check in on an old friend: the Shadowy Flamingo. In 2016, I wrote a post about the Court’s new practice of providing free access to unpublished judgments. The most interesting case I found using that feature was Flamingo […]
*This is the fourth post in a symposium on Peter Shane’s “Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency.” For other posts in the series, click here. It is a pleasure to participate in this symposium on Peter Shane’s new book, Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future […]
*This is the third post in a symposium on Peter Shane’s “Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency.” For other posts in the series, click here. Democracy’s Chief Executive is a wonderful antidote to the strange affection many have for the “unitary” executive, including our present Supreme Court. Peter Shane’s […]
What have we learned so far about regulatory budgets, and what might the next iteration of Executive Order 13771 look like? Although E.O. 13771 is not currently on the books, future presidential administrations may decide to formulate their own versions of regulatory budgeting under OIRA’s management and oversight. So it’s good to learn from the […]
*This is the second post in a symposium on Peter Shane’s “Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency.” For other posts in the series, click here. American democracy is under threat from a frighteningly large number of sources, including from the insurrection of January 6th and the possibility of similar […]
The D.C. Circuit did not release new opinions during the week of October 17. There were oral arguments in cases that we’ll follow at D.C. Circuit Review—Reviewed, including litigation over Exemption 4 to FOIA. But that’s not the biggest or most interesting news from last week at the D.C. Circuit. To my mind, the highlight […]
This post assesses the Solicitor General’s argument, in New York v. New Jersey, that Congressionally-ratified interstate compacts obligating states to ongoing obligation include an implicit right of unilateral withdrawal from the compact and assumption of a compact agency’s authority by the withdrawing state within its state boundaries. The Solicitor General’s argument ignores state practices in […]
*This is the first post in a symposium on Peter Shane’s “Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency.” For other posts in the series, click here. Peter Shane characterizes the American presidency as now reflecting an “organizational culture of entitlement.” His book is primarily a critique of constitutional doctrines that […]
*This is the introduction to a symposium on Peter Shane’s “Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency.” For other posts in the series, click here. For years, Peter Shane has been sounding the alarm against an overgrown (here, he calls it “entitled”) presidentialism that seems to admit of no legal […]
The Fifth Circuit held last week that the Consumer Financial Protection Board (CFPB) cannot promulgate or enforce its regulations because, by law, it receives its operating funds each year from the Federal Reserve Board rather than time-limited appropriations statutes. The Fifth Circuit’s decision is incorrect, and especially so if one embraces the formalist approach to […]
The Federal Trade Commission appears on a collision course with the Supreme Court. Even as the Court reins in the discretion of independent agencies to increase their accountability to the President and Congress, the FTC is charging ahead with new rules and novel theories that stretch the limits of its authority. For instance, the FTC […]
As discussed in a prior post, the Sixth Circuit in Whirlpool v. Commissioner, 19 F.4th 944 (6th Cir. 2021), embraced phantom regulations. The court concluded that a statute that contemplated rules applying “under regulations” could operate regardless of whether regulations had been issued under the statute. Though in Whirlpool the Treasury had issued regulations relevant […]