Professor Philip Hamburger has a major new manuscript, Nondelegation Blues, which includes a response to my article A Critical Assessment of the Originalist Case Against Administrative Regulatory Power. Hamburger’s response makes several points, each of which could be the subject of an interesting dialogue. For the moment, I consider it urgent to respond to one […]
*This is the fifteenth and final post in a series on Andrew Rudalevige’s new book, By Executive Order: Bureaucratic Management and the Limits of Presidential Power. For other posts in the series, click here. This post allows me to check off one of my New Year’s resolutions (one more than in 2021, already!): to express my deep gratitude […]
Here is the December 2021 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. With the law review submission cycle opening up this month and next, I’m excited to read the new scholarship folks have been working on that […]
A few weeks, I wrote a post about President Biden’s nomination of Judge J. Michelle Childs to serve on the D.C. Circuit. In that spirit, this week — given that the Court only issued a single decision* — I’ve decided that the time is right to check in on one of the Court’s newest judges: […]
It was a quiet week at the D.C. Circuit, with no arguments and only two* opinions. In United States v. Turner, the panel addressed the proper interpretation of the Sentencing Guidelines in determining a sentence for a supervised-release violation. Under the Guidelines, the court must first determine the grade of violation based on the severity […]
Firms are not passive recipients of regulation. When new rules or taxes are put in place, firms adjust their activities to accommodate the new setting, maximizing profits across a multitude of margins. Some of these altered behaviors can reflect the intent of the regulation, while others will not. Obamacare wanted employers to pay for employee’s […]
For most federal agencies, centralized review by Office of Information and Regulatory Affairs (OIRA) and regulatory impact analysis have been a routine part of the regulatory process for more than 40 years.[1] Not so in the tax context. When OIRA was in its infancy, OIRA Administrator Christopher DeMuth and Treasury Department General Counsel Peter Wallison […]
Last week the D.C. Circuit published six opinions in an early celebration of the new year. The FAA, Amtrak, and arbitration clauses all made appearances in a set of fact-bound opinions with few precedential highlights. I’ve read them all so you don’t have to. For readers of this blog, last week’s highlights included administrative law […]
This Friday, the Supreme Court will hear oral argument in a set of cases challenging the Occupational Safety and Health Administration’s decision to issue an “emergency temporary standard” (“ETS”) requiring, with some exceptions, either mandatory COVID-19 vaccination or masking and testing by employers with 100 or more employees. The ETS Litigation presents significant questions of […]
Last November, the Supreme Court heard argument in Becerra v. Empire Health Foundation and American Hospital Association, et. al. v. Becerra. Both cases involved challenges to the Department of Health and Human Services’ (HHS) reimbursement rules under the Medicare Act, 42 U.S.C. § 1395 et seq. In Empire Health, the Plaintiff challenged its 2008 reimbursement […]
As many litigators know, federal courts often take substantial time before they rule on motions or issue their opinions. Weeks, months, or sometimes even years may pass between an argument over an issue and a court’s disposition of that issue. Parties usually have little choice but to wait. In the U.S. Tax Court, delays may present an especially acute problem. In Tax Court trials, no jury renders […]
As I first noted on the blog seven years ago, the Administrative Law Section of Jotwell—The Journal of Things We Like (Lots)—is a terrific resource for administrative law practitioners and scholars. Jotwell’s Administrative Law Section publishes monthly a short review of a current piece of administrative law scholarship, usually authored by one of our contributing editors who are all leading […]
Just before Christmas, President Joe Biden announced his intent to nominate Judge J. Michelle Childs to fill Judge David Tatel’s seat on the D.C. Circuit. Judge Childs, who has served as a judge on the U.S. District Court for the District of South Carolina since 2010, has had some fascinating experience at the state government […]
In 2016, I wrote a lengthy post about Christmas in the D.C. Circuit. Well, it is almost Christmas again, so why not repost it again as I’ve done in the past? Be warned, though: Christmas is not always jolly. Consider, for instance, the case of Anderson v. White, decided by the Court of Appeals for the […]
Earlier this week, Judge Griffith (ret.) wrote a post here at Notice & Comment that began with this thought: Life on the D.C. Circuit is a mixture of the grand and the mundane. … I’m reminded of my interview with White House Counsel when President George W. Bush was thinking of nominating me to fill […]