This Term, the Supreme Court is set to hear argument in two cases on affirmative action in college admissions.  One of the cases is against Harvard, the other against the University of North Carolina. Both universities have policies that permit the consideration of race in making admissions decisions.  The question presented is whether considering race […]

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 […]

On Wednesday, in Moore v. Circosta, the Supreme Court denied a request for an injunction barring the implementation of a memo issued by the North Carolina State Board of Elections that extends the deadline for receiving absentee ballots in North Carolina.  Justice Gorsuch dissented, and it is on that dissent that this post focuses.  One line […]

The nondelegation doctrine says that a statute can give rulemaking power to an agency so long as the statute contains an intelligible principle directing how that power must be used. For years, the doctrine was a joke.  Courts routinely upheld laws with the slimmest of intelligible principles, and sometimes they even read intelligible principles into […]

One doctrine that often comes up in challenges to government actions is the presumption of regularity. Under the presumption, courts assume that government officials properly discharged their official duties unless there is evidence showing otherwise.  Courts have invoked it to give the government the benefit of the doubt in challenges to agency actions. If there are both […]

Yesterday, President Trump issued an Executive Order exempting administrative law judges from the competitive selection process and stripping them of the removal protections provided by civil service regulations. Under the order, agency heads have much broader discretion over the hiring and firing of ALJs. The changes to the hiring process are unsurprising. This term, in […]

Since Attorney General Sessions delivered his speech last week at the Federalist Society’s National Student Convention, there has been a lot of talk about nationwide injunctions—injunctions that prohibit the government from enforcing a law against anyone, as opposed to only against a particular plaintiff. While many people have talked about granting these injunctions, one thing that I […]

Chevron deference, which requires courts to defer to reasonable agency interpretations of statutes that the agency administers, is a central doctrine of administrative law. Despite its importance, Chevron rests on uneasy ground. Critics have raised various legal objections to the doctrine. One is that requiring courts to defer to agency interpretations of statutes violates the […]

A lot of Supreme Court cases involve the meaning of Article III. Most of those cases address whether the Article III courts have jurisdiction over a particular claim. But a handful of the Article III cases focuses on the converse question—whether a tribunal outside of Article III can adjudicate a claim. Article III “vest[s]” the […]

Next term, the Court will hear Patchak v. Zinke, No. 16-498. The case raises an old question about the line between the power of Congress and the power of the federal courts: The extent to which Congress can direct the outcome of a case. Patchak brought suit under the APA challenging the Department of the […]

Yesterday, the Court decided Esquivel-Quintana v. Sessions, an immigration case implicating Chevron. Under Chevron, of course, courts and agencies are bound by unambiguous statutes. But if a statute is ambiguous, courts must defer to reasonable interpretations of that statute rendered by the agency charged with interpreting that statute.   One issue underlying Chevron is identifying what […]

Back in January, a group of constitutional law scholars (working with Citizens for Responsibility and Ethics in Washington (CREW)) sued President Trump for violating the Emoluments Clause. In a previous post, I explained argued that those scholars did not have Article III standing because they had not alleged a cognizable injury in fact. Today, the […]

Yesterday, the Supreme Court decided Beckles v. United States. The case involved a challenge to the federal sentencing guidelines. Section 4B1.1 of the U.S. Sentencing Guidelines prescribes a sentencing enhancement for certain criminal defendants if the offense of conviction is a “crime of violence.”  At the time of Beckles’s conviction, the guideline defined “crime of […]

This past week Washington state jumped into the fight against President Trump’s executive order limiting immigration, filing suit in district court in Washington. The district court issued a nationwide temporary stay of the order, and the United States has now appealed to the Ninth Circuit. One of the major issues in the case is whether […]

Today, a group of constitutional law scholars apparently plan to file a federal lawsuit alleging that President Trump is violating the Emoluments Clause because his hotels are receiving payments from foreign governments.   Although the meaning of the clause is up in the air, roughly speaking the clause prohibits federal officials from taking payments from foreign […]