On July 9, President Biden issued an executive order in which he described a comprehensive 72-part agenda to improve competition in the United States. Some of his proposals suggest that he supports the plans for radical changes in antitrust law that FTC Chair Khan proposed at her first FTC meeting on July 1. I have […]

June ended up being an extremely eventful month for state deference. In addition to the Mississippi Supreme Court’s long expected decision to abandon Auer like deference, the Colorado Supreme Court also issued a major decision rejecting both Brand X and Chevron like deference. Previously, while the court had not has expressly voiced its skepticism or […]

With the aid of my smart and industrious research assistant Rob Galloway, I have completed the annual list of Legislation and Regulation (Leg Reg) and Administrative Law course requirements at ABA accredited law schools. The link to the list as a publicly viewable Google doc is here. Two schools (Georgia State and Wisconsin) have added […]

From Kathryn Kovacs: In January, the AALS Administrative Law Section presented Joy Milligan its first Emerging Scholar Award. Nominations for this year’s award are due on September 30, 2021. Self-nominations are welcome! Fulltime faculty members without tenure at the time of the work’s publication, including those with fellowships, visiting assistant professorships, or similar positions, are […]

In Part 1 of this two-part post, I summarized Justice Clarence Thomas’s recent call to reexamine the “functional prong” of Edmond v. U.S. (1997). Though Thomas had joined Edmond in full and cited it approvingly as recently as four years ago, Thomas’s dissent in U.S. v. Arthrex (2021) suggested that Edmond’s functional prong may lack […]

Today, President Biden fired the head of the Social Security Administration, despite the fact that Congress has declared that “[a]n individual serving in the office of Commissioner may be removed from office only pursuant to a finding by the President of neglect of duty or malfeasance in office.” The Office of Legal Counsel justified this […]

This summer has been a good one for new administrative law scholarship. Here is the June 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. Interest-Group Theories of Regulation: A Skeptical Note by Cass R. Sunstein Remand and […]

Four years ago in NLRB v. SW General (2017), Justice Clarence Thomas argued in a concurring opinion that the general counsel of the NLRB “is likely a principal officer” and that appointing an acting general counsel without Senate consent “raises grave constitutional concerns.” In that concurrence, Justice Thomas applied the test for distinguishing “principal” and […]

Much has been made about how to characterize the Supreme Court’s recently finished October 2020 term. Some have suggested it was relatively quiet, especially compared to the heavily anticipated October 2021 term, while others have highlighted potentially important decisions, such as Brnovich and TransUnion, that could fundamentally reshape the law, depending on how they are […]

In a Federalist Society webinar on Monday, July 12, 2021, at 2PM eastern, my coauthor Shoba Sivaprasad Wadhia and I will be discussing our article The Case Against Chevron Deference in Immigration Adjudication, as well as the Biden Administration’s apparent move from adjudication and guidance to rulemaking for major immigration policy. Dick Pierce and Susan […]

Published by the IBM Center for The Business of Government, Susan Webb Yackee has authored a new report entitled Guidance on Regulatory Guidance: What the Government Needs to Know and Do to Engage the Public. This looks like a fascinating read. Here’s a summary of the report from the Center’s website: Federal agencies routinely issue […]

Over the past two months, proponents of major changes in antitrust law have introduced numerous bills in Congress that have some degree of bipartisan support. One of the leading proponents of major changes, Lina Khan, is now Chair of the FTC. On July 1, Chair Khan announced major changes in the FTC’s policies and procedures […]

This past week, the administrative law listserv—and a longer treatment, titled Fasten Your Seatbelts, The FTC Is About to Take Us on a Rollercoaster Ride, published on this blog—has had plenty to say about Chair Lina Khan and her stewardship of the FTC. What motivates me to write, however, is the surprising and surprisingly uncharitable […]

As regular readers of this blog may be aware, I recently argued in the U.S. Supreme Court—and lost.  In Collins v. Yellen, the Court appointed me to defend the Federal Housing Finance Agency, an independent agency whose director can only be fired “for cause.” Applying Seila Law v. CFPB, the Court concluded 7-2 — including […]

In Transunion v. Ramirez, the Supreme Court illustrated the limits on Congress’s authority to establish an Article III “injury in fact.” Though the case involved a lawsuit by private plaintiffs against a private company, the Court’s decision will likely affect standing doctrine in other contexts. As discussed here, the Transunion case may negatively affect congressional […]