Judge Raymond Kethledge and the Separation of Powers, by Charles J. Cooper and G. Ryan Snyder

by Guest Blogger — Monday, June 18, 2018

In recent years, several posts on this blog have analyzed how individual judges on President Trump’s Supreme Court shortlist approach questions of administrative law. (See here and here.) To our knowledge, however, no one has written about one of the leading contenders—Judge Raymond Kethledge. This two-part series attempts to fill that gap. The first post […]

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D.C. Circuit Review – Reviewed: Let’s Be Practical

by Aaron Nielson — Friday, June 15, 2018@Aaron_L_Nielson

From time to time I indulge my theoretical side. At heart, however, I’m a pretty practical person. That’s why I love being a lawyer. Law requires theory. But it isn’t just theory; it is theory applied to very practical problems.* The D.C. Circuit, like the Supreme Court, is a theory-heavy court. But it also is […]

The case that could end the Texas lawsuit.

by Nicholas Bagley — Friday, June 15, 2018

A slew of amicus briefs were filed yesterday in the Texas lawsuit, almost every one of them pushing back on the argument that the Affordable Care Act should be invalidated, in whole or in part. (I filed one myself, together with a bipartisan group of law professors.) Today, I wanted to highlight one of those […]

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A Lemon Cake: Ascribing Religious Motivation in Administrative Adjudications — A Comment on Masterpiece Cakeshop (Part I)

by Bernard Bell — Friday, June 15, 2018

  In Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court held that the Free Exercise Clause did not require governments to exempt religious adherents from generally applicable laws, even when those laws prohibited self-regarding actions performed as a part of a religious ceremony (namely ingesting peyote).  Id. at 877-79.  Resolving a claim […]

Skidmore, Not Auer, Deference for Foreign Governments’ Views of Their Own Law, By Jeffrey Lubbers

by Guest Blogger — Friday, June 15, 2018

In my April 9 guest blogpost, “Auer Deference with a Foreign Twist,” I discussed the issues before the Court in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd. The case involved a federal class action antitrust and price-fixing jury trial verdict for $147 million against two Chinese vitamin C manufacturers that was overturned […]

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How Democrats Could Fight the Senate Eliminating Its August Recess

by Sam Wice — Friday, June 15, 2018

Senator Mitch McConnell recently announced that he intends to eliminate much of the August recess so that the Senate has more time to confirm nominees and pass funding legislation. Senate Republicans want this extra time because even if Republicans have the votes (i.e., 60 for legislation and 50 for nominations), they still need 30 hours […]

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Amicus brief in the Texas ACA case

by Nicholas Bagley — Thursday, June 14, 2018

Together with a bipartisan group of law professors—Jonathan Adler, Abbe Gluck, Ilya Somin, and Kevin Walsh—I submitted an amicus brief today in the Texas litigation over the constitutionality of the Affordable Care Act. Joe Palmore at Morrison and Foerster graciously helped to pull the brief together; he did characteristically excellent work. The amicus brief doesn’t […]

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A Big Loss for Insurers in the Risk Corridor Litigation.

by Nicholas Bagley — Thursday, June 14, 2018

Today was a bad day for insurers seeking more than $12 billion in risk corridor money from the United States. Over a dissent, the Federal Circuit ruled that the federal government doesn’t owe them a cent. (I’ve been following the litigation for a long time; you can catch up on my prior posts here.) The […]

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The Texas lawsuit could end some of the ACA’s protections for employer coverage.

by Nicholas Bagley — Thursday, June 14, 2018

The Trump administration’s refusal to defend portions of the Affordable Care Act is shocking enough. Equally shocking is how little it seems to care what happens if it gets what it’s asking for. One question in particular: what about legal protections for the 160 million people who get insurance through their employers? Will their insurance […]

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D.C. Circuit Review – Reviewed: The Irons Footnote

by Aaron Nielson — Friday, June 8, 2018@Aaron_L_Nielson

It’s summer again — at least in the D.C. Circuit. As explained last week, June, July, and August are busy months in the nation’s “second most important court.” We have seven opinions — and one important order.* This creates a dilemma for, well, me. I could discuss all of the cases in great detail. But […]