I wasn’t planning on writing a post today. But wow — what an unusual day in the D.C. Circuit.* Let’s start with United States v. Scurry (also known as “E”). Here is how the per curiam (Judges Millett, Pillard, and Katsas) begins: I’ve never seen that before. It gets more interesting, though. Eric Scurry’s counsel […]
Motivated largely by the “Techlash” against the digital platform giants like Facebook, Amazon, Apple, and Google along with the Net Neutrality debate implicating Internet service providers (“ISPs”) like AT&T, Verizon, and Comcast, there is a growing concern that the nation’s antitrust laws and regulatory institutions are ill-suited for the Digital Age. What is needed, some say, […]
President Biden’s immigration bill is now available. In my first look at the bill, I was searching for provisions that would ease the massive problems facing immigration removal adjudication. There is desperate need for reform of the immigration courts, which adjudicate charges of removal brought by the government against non-citizens. The bill avoids major structural […]
On February 18, 2021, Tae D. Johnson, Acting Director of U.S. Immigration Customs Enforcement (ICE), issued interim guidance on civil immigration enforcement and removal priorities (ICE Priorities Memo). Building on a previous commentary on prosecutorial discretion in the Biden administration, this post shares key elements of the ICE Priorities Memo, and compares it to how […]
On March 1, 2021, the Supreme Court will hear argument in three cases arising from the Federal Circuit’s Arthrex decision. The main issue before the Court is whether the more than 250 administrative patent judges (APJs) who are employed by the Patent & Trademark Office (PTO) are inferior or principal officers under the Constitution. Riding […]
When George Shultz passed away last week, America lost one of the 20th Century’s greatest statesmen. His death, months after his 100th birthday, spurred an outpouring of obituaries and remembrances, a fitting tribute to an extraordinary man. He had an unparalleled career of public service, in four cabinet positions — Director of the Office of […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. FTC Gets Yellow Card over Post-Lucia Constitutional Concerns After Free Enterprise Fund and Lucia, the constitutionality of independent agency adjudications became an open question. This legal uncertainty, in turn, engendered a spate of original actions […]
Today on behalf of the ABA Section of Administrative Law and Regulatory Practice, I sent a letter to President Biden to encourage him to act swiftly to nominate a new chair to lead the Administrative Conference of the United States. The letter is here, which I’ve reproduced below: Dear Mr. President: On behalf of the ABA […]
From Craig Thornton, Immediate Past President of the Society of Benefit-Cost Analysis: Colleagues in the Administrative Law area: In just over a month, the Society for Benefit-Cost Analysis will hold its annual meeting. The meeting will be held online this year and so it will be easy to attend. There are a number of sessions […]
We thought you might like to learn more about members in the ABA Administrative Law & Regulatory Practice Section, so we have restarted our Section Member Spotlight Series. Prior posts in this series can be found here, on the Section’s legacy Notice and Comment blog that merged with the Yale Journal on Regulation‘s blog in 2015. The next […]
One thing that has bothered me for a long time is the imprecision in the commonly tossed around idea that courts are supposed to act as “faithful agents” when they interpret statutes. E.g., Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 110 (2010). The basic idea of this theory is […]
President Biden’s nominee to be the Director of the Office of Management and Budget, Neera Tanden, wrapped up her second of two confirmation hearings today. Regulation was a topic in both hearings. When might we expect to see a nomination from President Biden for the Administrator of the Office of Information & Regulatory Affairs (OIRA)? […]
Part 4: The Consequences of Late Impeachment This is the fourth and final part of a series on the 1876 impeachment trial of former Secretary of War William Belknap. In each part, I have examined a different category of argument made at that trial on the question whether the Senate has constitutional jurisdiction to try […]
Two summers ago I shared some quick reactions to Sam Bray’s argument that the Administrative Procedure Act (APA) does not support nationwide injunctions to set aside an agency’s final rule. In that post, I expressed preliminary skepticism, based on the text and structure of the APA: “a final rule is an ‘agency action’ under the […]
My only contribution to recent posts on the transition and/or Secretary of War William Belknap’s impeachment may be that I likely have some relationship to William Belknap—my great-grandma’s maiden name was Belknap. However, what I can contribute is information about two great events hosted by the U.S. Securities and Exchange Commission’s (SEC) Division of Enforcement […]