Monthly Archives: March 2015

Killing Chevron

by Andy Grewal — Friday, Mar. 13, 2015

In a characteristically provocative opinion, Justice Scalia, concurring in Perez v. Mortgage Bankers, expressed skepticism over Chevron deference. He suggests that Chevron does not comport with the APA’s directive that “the reviewing court” decide questions of law and that Chevron goes beyond the historic level of deference accorded agency interpretations. Putting aside issues of stare […]

E-Cigarette Marketing and the First Amendment

by Micah Berman — Thursday, Mar. 12, 2015

Eric Lindblom, a Senior Scholar at Georgetown Law School’s O’Neill Institute for National & Global Health Law, has published an important new article entitled Effectively Regulating E-Cigarettes and Their Advertising – and the First Amendment in the Food & Drug Law Journal. (Full disclosure: Lindblom was my supervisor when I worked at the FDA Center […]

Wrapping Your Head Around the Clean Power Plan

by Bruce Huber — Wednesday, Mar. 11, 2015

Step aside, Affordable Care Act. If you aren’t already, get used to hearing about the Clean Power Plan. Perhaps the most ambitious regulatory effort ever put forward by the EPA, the Plan represents the largest, farthest-reaching component of the Obama Administration’s response to greenhouse gas (GHG) emissions and climate change. So far, we’ve only seen […]

Avoiding Constitutional Avoidance

by Nicholas Bagley — Friday, Mar. 6, 2015

In parsing Justice Kennedy’s comments about federalism from oral argument in King yesterday, it’s important to notice that federalism principles could affect the outcomes in two very different ways. Most of Kennedy’s comments suggested that threatening the states with the loss of tax credits and the destruction of their individual insurance markets would be unconstitutionally […]

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A Stay in King v. Burwell and the “Flowing Dollars” Theory

by Andy Grewal — Friday, Mar. 6, 2015

During oral arguments in King v. Burwell, Justice Alito referred to a few issues that have been covered on this blog. For now, I’d like to focus on his question regarding a potential stay of any government-adverse decision. Regarding the stay, Justice Alito asked Solicitor General Verrilli whether a holding for the petitioner would wreak […]

The Governance Problem at the Federal Reserve Banks

by Peter Conti-Brown — Friday, Mar. 6, 2015

This is the first of three posts on recent developments in the governance of the Fed.  My apologies to any regular readers—who might consist only of my wife and mother—for the long break from blogging. To compensate, I’m going to write a three-post series on some recent discussions of the Fed and its governance. Today, […]

Will the Government Get Chevron Deference in King v. Burwell?

by Connor N. Raso — Friday, Mar. 6, 2015

The Government is likely to prevail in King v. Burwell if its interpretation of the Affordable Care Act receives Chevron deference. This raises an important question: what influences when Supreme Court justices grant Chevron deference to agencies? Prof. Bill Eskridge and I examined this question in a paper that examined all Supreme Court cases from […]

Deferring to the IRS

by Nicholas Bagley — Friday, Mar. 6, 2015

Given the Chief Justice’s near-silence at oral argument in King v. Burwell yesterday, much will be made of Justice Kennedy’s sensitivity to the argument that accepting the plaintiffs’ interpretation of the statute would raise serious federalism concerns. That’s completely appropriate. But I want to call attention to a different question that Kennedy asked the government’s […]

North Carolina Board: Much Ado About Nothing, by Joseph M. Sanderson

by Guest Blogger — Wednesday, Mar. 4, 2015

For all the sound and fury from federalism scholars over the Supreme Court’s recent decision in FTC v. North Carolina Board of Dental Examiners, one might have thought that the Supreme Court had sounded the death knell for states’ ability to protect favored industries from market competition. But while North Carolina must now actively supervise […]

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