Summary: A recent district court decision, Texas Medical Association v. HHS, Dkt No. 6:21-CV-425 (E.D. Tex. Feb. 23, 2022), accessible on WESTLAW at Medicare & Medicaid Guide ¶307259 (C.C.H.), 2022 WL 597141, has troubling implications both for agencies’ traditional authority to create rebuttable presumptions and for the scope of Administrative Procedure Act section 553’s “good […]
If you’re here to read about admin law, you may be disappointed. Only one decision from the D.C. Circuit this week, about public court records, and it remands the case without deciding any of the issues presented. But along the way it reinforces a fundamental principle in our court system: the right of public access […]
Summary: A recent district court decision, Texas Medical Association v. HHS, Dkt No. 6:21-CV-425 (E.D. Tex. Feb. 23, 2022), accessible on WESTLAW at Medicare & Medicaid Guide ¶307259 (C.C.H.), 2022 WL 597141, has troubling implications both for agencies’ traditional authority to create rebuttable presumptions and for the scope of Administrative Procedure Act section 553’s “good […]
Please join us for: Understanding Agency Self-Regulation Virtual Live Webinar Thursday March 31, 2022 12 pm – 1:30 pm Eastern Time Via Zoom Confirmed Panelists: Christopher Curtis, Principal Deputy General Counsel (Retired), Federal Housing Finance Agency, Washington, DC Richard F. Griffin, Of Counsel, Bredhoff & Kaiser PLLC, Washington, DC Lynden Melmed, Partner, Berry Appleman & […]
The 2022 Consolidated Appropriations Act that President Biden signed into law on March 15 includes a new and important restraint on the tool of presidential administration made famous by former President Trump’s interference with aid to Ukraine, namely, apportionment. This blog post highlights this restraint, then explains why it is surprising in ways that could […]
Here is the February 2022 Edition of the most-downloaded recent papers (those announced in the last 60 days) from SSRN’s U.S. Administrative Law eJournal, which is edited by Bill Funk. This is a really great group of papers. I look forward to reading them as well as seeing what others have been writing as they […]
I’ve recently accepted a publication offer from the Yale Journal on Regulation for my new article titled Commission Chairs, a draft of which is available on SSRN. My article is a quantitative and qualitative analysis of the statutes creating and governing 82 federal multimember agencies (commissions) to understand the powers given to commission chairs and […]
Summary: This post summarizes a report adopted by the FOIA Advisory Committee on March 10, 2022, regarding the use of a Glomar response to neither confirm nor deny the existence of records responsive to a FOIA request. Perhaps Howard Hughes is somewhere grimacing right about now. In 1968, at the height of the Cold War, […]
In a week when our attention was focused on the atrocity of Putin’s invasion of Ukraine, the D.C. Circuit handed down an opinion that hearkens back to Hitler’s effort to destroy Europe. In the consolidated case of David De Csepel v. Republic of Hungary (20-7047) and In re: Republic of Hungary (20-8001), Judges Tatel and […]
Perhaps the most famous line from Justice Elena Kagan’s confirmation hearing was Justice Kagan’s submission that “we are all originalists now.” In the context of originalism and the nondelegation doctrine, we are all responding to Professors Julian Mortenson and Nicholas Bagley now. As those familiar with the nondelegation debates know, Professors Mortenson and Bagley published […]
Summary: A recent district court decision, Texas Medical Association v. HHS, Dkt No. 6:21-CV-425 (E.D. Tex. Feb. 23, 2022), accessible on WESTLAW at Medicare & Medicaid Guide ¶307259 (C.C.H.), 2022 WL 597141, has troubling implications both for agencies’ traditional authority to create rebuttable presumptions and for the scope of Administrative Procedure Act section 553’s “good […]
The Court issued three decisions touching on administrative law this week.* There is no obvious theme uniting the three, which cover much of the waterfront of executive regulatory authority, from labor relations, to energy, to public health and immigration. Two decisions resolve petitions for review of final agency action, and the third, an interlocutory appeal […]
Can agencies consider international factors when they regulate domestically absent explicit statutory authorization? A case now before the Fifth Circuit raises precisely this question. In Louisiana v. Biden—yet another environmental policy case—ten states seek to undo one of President Biden’s key climate change regulatory initiatives. The Louisiana district court concluded that considerations related to global […]
*From 2019-2020, Professor Robert F. Barsky contributed a series of pieces to Notice & Comment on the rights of refugees and vulnerable migrants, available here. Clamouring for Legal Protection is a must-read for any current or aspiring attorney. This insightful book demonstrates the crucial need to go beyond the law to be a good lawyer. […]
The Duke Law Journal invites papers for its 53rd Annual Administrative Law Symposium, to be held in spring 2023 at Duke University School of Law in Durham, North Carolina. Professor Cass Sunstein of Harvard University will be the headline speaker and centerpiece author for the symposium and its accompanying Duke Law Journal May 2023 publication […]