On January 27, the Trump administration directed federal agencies to pause the obligation and disbursement of all federal financial assistance. This is the first shot in an impending struggle over impoundment, which is a President’s refusal to spend Congressional appropriations on time, or at all. Former Trump administration officials and current nominees for the new administration have repeatedly argued that the President has […]
An argument lurking just beneath the surface in a pending Fifth Circuit case could stem the bleeding from the Supreme Court’s decision in SEC v. Jarkesy. Last summer, Jarkesy held that agencies seeking to impose monetary penalties on enforcement targets for securities fraud and other common law-ish claims must proceed in court, not their own administrative forums. Now, Burgess v. […]
On Tuesday, many law students received a rather unfortunate email from the Department of Justice’s (DOJ) Office of Attorney Recruitment & Management. The email read: “This email is about your application to the Attorney General’s Honors Program. Pursuant to the hiring freeze announced January 20, 2025, your job offer has been revoked.” Soon, rumors spread […]
In a recent post in this space, “The (Likely) End of the FCC’s Long-Running Net Neutrality Saga,” I explained why the Court of Appeals for the Sixth Circuit’s decision in Ohio Telecom Association v. FCC on January 2 likely signals the end of the FCC’s lengthy history of imposing, abandoning, and reimposing “net neutrality” mandates on Internet service providers, […]
Doctors learn about removing stitches. Dentists train to take off those pesky braces. Lawyers, however, spend little of their education studying when a law needs to come off the books. This isn’t a new problem. As noted by Karl Llewellyn in 1935, law students come to think that “for too much law, more law will be […]
Six years after the Supreme Court took on the question in Gundy v. United States, 588 U.S. 128 (2019), of when, if ever, Congress has unconstitutionally delegated legislative power to the executive branch, the Court will try again to articulate a standard that a majority of the Court can accept. The case is FCC v. […]
Loper Bright Enterprises v. Raimondo, of course, overruled Chevron v. NRDC, ending judicial deference to administrative agencies conferred by ambiguous statutory language. The opinion also acknowledged that in many statutory provisions, Congress delegates discretionary authority to administrative agencies. If so, agencies rather than courts have primary responsibility for interpreting the statutory language. Professor Chris Walker has called […]
Read Part I here, Part II here, and Part III here. Congress abdicates its responsibility by relying on the courts to enforce bureaucratic oversight. The received antidotes to the administrative state—workforce reduction, ending judicial deference to agency interpretations of statutes, or demanding Congress write unambiguous laws—are hardly new; they have been recommended for as long […]
Read Part I here and Part II here. Special interests hold power in the administrative state. Political scientists and legal scholars suggest the administrative state exists because as policy problems became more complex, Congress needed to develop expertise within the executive branch to not only understand the economic and technological changes in the postbellum American […]
Read Part I here. Arbitrary bureaucratic power is at its highest when agencies determine the scope of their own jurisdiction, but jurisdiction protects the special interests influencing the bureaucracy. A brief illustration of real-world issues demonstrates what I mean by agency “jurisdiction.” Example 1 Medical testing laboratory LabMD helped physicians diagnose prostate cancer. An employee […]
Criticisms abound of a bloated, unaccountable, arbitrary, and abusive federal bureaucracy. But what if the way in which the critics have lambasted the administrative state is misconceived? The critics have ideas about potential antidotes: changing how the courts review administrative actions, increasing congressional capacity for oversight, terminating wasteful spending programs, and, above all else, increasing […]
There’s probably not a communications or administrative lawyer or scholar alive today who is not familiar with the decades-old “net neutrality” saga. Well, due to the Court of Appeals for the Sixth Circuit’s decision in Ohio Telecom Association v. FCC on January 2, the saga, mercifully, may be coming to an end. With no need for more […]
Whether it is PayPal, Venmo, Cash App, or something else, most Americans have used one or more payment platforms. These platforms are usually “viewed as offering a relatively fast, easy, secure, and affordable way of making and receiving retail payments.” Soon, the payment platform marketplace may grow a bit more crowded. In a blog post from January […]
The U.S. Court of Appeals for the Fifth Circuit recently issued its decision in Van Loon v. Department of the Treasury, a case that has been closely watched by the press and Bitcoin advocates. As set forth below, this decision has important implications for Bitcoin. In particular, it effectively precludes the federal government from banning Bitcoin under the International Emergency […]
The scope of federal environmental reviews is at stake when the Supreme Court decides the just-argued case Seven County Infrastructure Coalition v. Eagle County. Under the National Environmental Policy Act (NEPA), agencies must analyze the environmental impacts of actions they fund, authorize, or carry out. Those impacts may include both direct impacts from a project as […]