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 […]
Last week, Pacific Legal Foundation (where we work) filed an amended class action complaint challenging the Biden Administration’s plan to cancel up to $519 billion in federally held student debt. The short history of our suit sheds light on the program’s shambolic implementation. After announcing the policy, the Education Department created a website to […]
The Administrative Procedure Act (APA) provides that judicial review applies to final agency action except to the extent that “agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a). Courts have interpreted this provision to preclude judicial review of individual, ad hoc decisions by an agency to not enforce a statute. […]
Join us for the annual ABA Administrative Law Conference! We have twenty substantive panels scheduled virtually over two days (December 1-2, 2022), with ability to watch and participate live in eight panels and then watch recordings of the other twelve panels on the virtual platform over the next month. The full schedule is available here, […]
Administrative law does not have to be hard. Follow the required procedures. Implement the statutes you have. Have a reasonable basis for your decisions. This is, really, it. Sure, there will always be questions about interpretive issues, or whether an agency has adequately addressed all comments, or the sufficiency of the agency’s evidence. And in […]
Over the last year, Melissa Wasserman, Matt Wiener, and I have been studying the role of precedential decision making in federal agency adjudication for a project commissioned by the Administrative Conference of the United States (ACUS). As part of the study, we interviewed adjudicators and other officials in twenty agency adjudication systems. We just posted […]
Fall is a time of transition, and so it is on the D.C. Circuit this year. As my colleague wrote, the Court lost one of its luminaries with Judge Silberman’s passing. Two new judges have joined; Judge Childs’ first sitting was in September and Judge Pan has her first sitting in November. And the Court […]
BYU Law has started a new antitrust project. As part of this project, we’re hosting a series of webinars and conferences. Our first conference — about Tech Platforms — and will be on Friday, October 21, 2022 at The Westin Washington, D.C. City Center. Here is the agenda: Click here to register. It should be […]
Withdrawn Public Inspection Documents Include Significant Rules This article is a cross-post from the GW Regulatory Studies Center. The original post can be found here. Download this Insight (PDF) Access the code and data (GitHub repository) Introduction The majority decision in Humane Society of the United States v. Department of Agriculture (USDA) has made it […]
Since at least 1980, there has been a documented increase in regulatory activity at the end of presidential terms, especially in the post-election period when the outgoing President’s successor is from the other party. This phenomenon has come to be known as “midnight regulation,” and the products of end-of-term legislative rulemaking are referred to as […]
Here is the September 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. Testing Textualism’s ‘Ordinary Meaning’ by Tara Leigh Grove (90 George Washington Law Review 101 (2022)) The National Security Consequences of the Major Questions Doctrine by Timothy Meyer & Ganesh Sitaraman (Michigan Law Review forthcoming) Is Criminal Law Unlawful? by Paul […]
It’s hard to imagine the D. C. Circuit without Judge Larry Silberman. As has been noted by many since his passing last week he was a commanding presence, an iconic judge. https://www.nytimes.com/2022/10/05/us/laurence-silberman-dead.html; https://www.washingtonpost.com/obituaries/2022/10/03/laurence-silberman-federal-appeals-judge/; https://www.yalejreg.com/nc/the-most-intimidating-judge-i-ever-met-reflections-on-judge-laurence-silberman/; https://www.wsj.com/articles/america-loses-a-judicial-giant-laurence-silberman-restraint-dc-circuit-constitution-judge-legacy-scalia-clerks-second-amendment-11664750990 I shall miss him. Before joining the D. C. Circuit I was in awe of Judge Silberman and his singular […]
The D.C. Circuit issued no opinions last week. The week of silence is fitting, for at its end, the Court lost one of its luminaries: Judge Laurence Silberman. His career was long and his talents, many, and he dedicated both to the service of his country. Several moving tributes published in the past day review […]
Judge Laurence Silberman of the D.C. Circuit has passed away. As I’ve reflected on the life of this remarkable judge, the word that has kept coming into my mind is “intimidating.” That isn’t the sort of word that often makes into a remembrance but I can’t think of a better one. I’ve met lots of […]