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 […]

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 […]

My article, West Virginia, the Inflation Reduction Act, and the Future of Climate Policy, in the July issue of the Environmental Law Reporter, examines two momentous events in summer 2022 with broad implications for the nation’s capacity to tackle dangerous climate change. One year ago tomorrow, in West Virginia v. Environmental Protection Agency, the Supreme Court formally […]

This month marks one year since the Supreme Court decided West Virginia v. EPA, in which the Court expressly named and relied on the major questions doctrine for the first time. It is thus an apt time to take stock of West Virginia’s impact, particularly as we may see yet another landmark major questions doctrine decision from […]

From the Pacific Legal Foundation: Pacific Legal Foundation’s Center for the Separation of Powers and the Harvard Journal of Law & Public Policy seek papers for “Doctrinal Crossroads: Major Questions, Non-Delegation, and Chevron Deference,” a symposium to be held in early 2024 in Boston. In soliciting papers on these ideas, we’re seeking a deeper examination […]