It is hard to believe it was less than a year ago that the Supreme Court decided what then seemed like the biggest news for administrative law in living memory: the overruling of Chevron. In ditching this forty-year-old precedent, the Court fundamentally unsettled what we have called the “administrative governance game”—that is, the complex, interdependent […]
The Freedom of Information Act (FOIA) is codified with the Administrative Procedure Act (APA) as part of Title 5 of the U.S. Code, and FOIA law is uncontroversially considered a subset of administrative law. At the same time, FOIA is unique, with its own judicial review provision and standards, as well as rather unconventional litigation […]
On March 25, the Supreme Court heard oral arguments in two related Clean Air Act cases: Oklahoma v. EPA and EPA v. Calumet Shreveport Refining LLC. The question before the Court in both cases relates to the administrative-law hot topic of venue shopping: Specifically, whether the EPA final action under review may be challenged in […]
Excessive deregulation creates harmful uncertainty for AI innovators. America needs a principles-based approach balancing clear guidelines with room for experimentation.
As Eloise Pasachoff, Zachary Price, and I describe in a forthcoming essay, the second Trump Administration is implementing unilateral executive control over federal spending—or “appropriations presidentialism”—with a breadth and magnitude that is unprecedented. Much of the recent public discourse around this appropriations presidentialism has focused on DOGE’s “efficiency” efforts and OMB Director Russ Vought’s assertion […]
Things don’t move fast in Washington—until they do. Just hours after we published our piece explaining why EPA waivers of Clean Air Act preemption are subject to congressional review under the CRA, GAO published a memo of “observations” taking the opposite view. In addition, UC Berkeley Professors Dan Farber and Eric Biber have explained in […]
For several months in 2022 and 2023, I wrote a series of blog posts called “The Major Questions Doctrine Reading List.” These posts came in the aftermath of several high-profile cases involving the MQD. My hope was that I could spotlight good scholarship and provide a shared language for talking about the MQD. For the […]
FCC v. Consumers’ Research (set to be argued on March 26) presents the Supreme Court with its latest chance to revitalize the nondelegation doctrine. The case centers on the multi-billion dollar universal service fund (USF) that, by statute, the FCC funds with fees from interstate telecom carriers to pay for various subsidy programs. The en […]
On January 20, 2025, President Trump’s first act was to end birthright citizenship by executive fiat with the “Protecting the Meaning and Value of American Citizenship” executive order. On March 13, 2025, after four federal courts enjoined the implementation of the executive order, the Trump Administration petitioned the U.S. Supreme Court to allow him to […]
In August 2024, federal district court Judge Amit Mehta ruled that Google violated Section 2 of the Sherman Act, setting the stage for what could be a watershed moment in tech regulation. The court found that Google unlawfully maintained its monopoly through exclusive distribution agreements with browser and device companies, sharing ad revenues in exchange […]
“The procedure of administrative rule making is one of the greatest inventions of modern government.” Summary Section 553(a)(2) of the Administrative Procedure Act exempts “loans, grants, benefits or contracts” from the Act’s rulemaking requirements. Many of the programs administered by the Department of Health and Human Services (DHHS) – such as Medicaid, old age, survivors, […]
Before the Dellinger v. Bessent case slips too far out of mind, it’s worth recollecting that the district court granted a declaratory judgment against the President of the United States. Is that permitted? The court first quoted the core part of the federal Declaratory Judgment Act (28 U.S.C. § 2201(a)): [I]n a case of actual controversy within […]
Congress will soon be deciding whether to use the Congressional Review Act (CRA) to overturn several EPA waivers that allow California to regulate vehicle emissions. There have been two important developments since I initially posted an explainer on Legal Planet about this issue. First, two lawyers, Michael Buschbacher and Jimmy Conde, posted a lengthy piece […]
The often-fuzzy distinction between “rules” and “adjudications” jumped to the foreground recently following the Trump Administration’s submission of several EPA “waivers” of Clean Air Act preemption for state electric-vehicle mandates to lawmakers under the Congressional Review Act (“CRA”). The Biden EPA had elected to not submit these actions for review, claiming in a December 2024 […]
In the event of a buyer’s willful breach of a merger agreement, lost-premium provisions allow a target corporation to claim damages that include the lost premium or economic entitlements that its stockholders would have received had the deal closed. In the recent Crispo v. Musk decision the Delaware Chancery Court held these provisions to be […]