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 January’s cases. In Gill v USDOJ, the Ninth Circuit made hash of an important administrative law doctrine. To be precise, the panel seems to have either ignored or implicitly […]
Welcome back to Ninth Circuit Review-Reviewed! In what was otherwise a slow December, the court did address one blockbuster controversy. In East Bay Sanctuary Covenant v. Donald Trump, a majority panel denied the government’s request to stay a temporary injunction imposed by a district court on the Trump administration’s recent policy to limit aliens’ eligibility […]
In a recent post, Prof. Aaron Nielson noted that Notice & Comment once considered starting a “D.C. Circuit Review–Reviewed-style column for the Ninth Circuit.” This sounded like a great idea to me, so I reached out to the editors and volunteered for the part. Henceforth, on the 9th of every month, I’ll report on the […]
In my last post, I presented the results of an empirical investigation into Seminole Rock deference as a judicial methodology. Below, I lend perspective to these results. Deference to Agency Interpretations of Non-Regulatory Texts Is an Understudied Area of Administrative Law Perhaps the most noteworthy finding of this analysis is that the Seminole Rock framework […]
Under the Supreme Court’s Seminole Rock (or Auer) doctrine, Article III courts give binding deference to an agency’s regulatory interpretation “unless it is plainly erroneous or inconsistent with the regulation.” In an effort to better understand Seminole Rock deference as judicial methodology, I recently took a deeper dive into a dataset I had created for […]
In a late December split decision, In Re A Cmty. Voice, et al. v. U.S. Envtl. Prot. Agency, the U.S. Court of Appeals for the Ninth Circuit sharply expanded an agency’s responsibilities under APA § 555(b), which requires that “within a reasonable time, each agency shall proceed to conclude a matter presented to it.” The […]
The Clean Air Act assigns certain fact-based judgments to the EPA, such as setting industry-wide New Source Performance Standards or Maximum Achievable Control Standards. And the Act assigns other such decisions to the states, subject to federal review, including case-by-case determinations of Best Available Control Technology and Best Available Retrofit Technology. This post seeks to […]
In a previous post on Notice & Comment, I argued that the Obama administration leveraged a judicial settlement with Volkswagen to circumvent the Congress’s power of the purse. In this post, I argue that the same settlement also infringes on President Trump’s Article II authority. Here’s the backstory. In 2011, President Obama announced his administration’s […]
On 28th June, the Department of Justice, Environmental Protection Agency, and Volkswagen proposed a judicial settlement to partially resolve the automaker’s Clean Air Act violations associated with the sale of almost 500,000 2.0 liter diesel engines that were equipped with “defeat devices.” While no one—not even Volkswagen—disputes the company’s misdeeds, the proposed partial consent […]
Many unresolved questions weigh heavily on the debate over Auer deference, including: Is Auer deference “stronger” than Chevron deference? How varied are the procedural formats associated with regulatory interpretations that are reviewed under Auer? What would be the administrative burden of reforming Auer by adding a “Step Zero”? In order to provide empirical answers to […]
In West Virginia v. EPA, the Supreme Court announced the arrival of the major questions doctrine (MQD), or the principle that agencies can’t turn old laws into new laws through expansive statutory interpretation. It is probably the most important doctrinal development in administrative law since Chevron v. NRDC. In the FAQ below, we try to […]
*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 […]
ACUS is hosting a multi-day, virtual Forum on Underserved Communities and the Regulatory Process this November. Leading policymakers, community advocates, and other experts will discuss underserved communities’ participation in the processes, including rulemaking and adjudication, by which federal agencies make regulatory policies. The forum will address Executive Order 13985, which requires federal agencies to “pursue a comprehensive approach to advancing equity for […]
Welcome back to another edition of Fifth Circuit Review—Reviewed! I have several noteworthy cases to report on, including the Fifth Circuit’s first full-blown application of the five-part test from Kisor v. Wilkie, 139 S. Ct. 2400 (2019). Let’s dig in. Auer Deference Alive and Well in Fifth Circuit Post-Kisor Johnson v. BOKF National Association, No. […]
We often think of the modern system of White House regulatory oversight, centered around the Office of Information and Regulatory Affairs, as a well-established framework. And of course, the nearly 40-year-old OIRA has become a significant and respected institution. But against the backdrop of our nearly 250-year-old republic, OIRA is still a very young institution. […]