Monthly Archives: May 2015

Chris Walker on Agency Interpretation

by Andrew Hessick — Friday, May 15, 2015@andyhessick

Administrative agencies regularly interpret statutes in the course of rulemaking, but there is little data about how they go about interpreting those statutes. Do the rulemakers rely on canons of interpretation? Do they look at legislative history? These questions are important for many reasons, one of which is whether agencies act as faithful agents of […]

The Next Level of Agency Deference?

by Andy Grewal — Thursday, May 14, 2015

Before it collapsed, Lehman Brothers engaged in various tax-motivated transactions, including ones to earn foreign tax credits. Last week, a federal judge addressed the merits of one of those controversies, holding against the defunct bank. The court tucked in a footnote a potentially interesting twist on agency deference. It noted that a so-called IRS Advisory […]

How to Keep the Subsidies Flowing in a Handful of States

by Nicholas Bagley — Monday, May 11, 2015

I’ve been toying with an idea that might allow the Obama administration, in the event that it loses in King v. Burwell, to keep subsidies flowing to residents in some of the 34 states that declined to create an exchange. What if HHS declared that any state that performs substantial, ongoing, and essential exchange functions […]

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Administrative Law SSRN Reading List, April 2015 Edition

by Chris Walker — Monday, May 11, 2015@chris_j_walker

Here is the April 2015 edition of the most-downloaded recent papers (those announced in the last 60 days) from SSRN’s U.S. Administrative Law eJournal, which is edited by William Funk. For more on why SSRN and this eJournal are such terrific resources for administrative law scholars and practitioners, check out my first post on the subject here. […]

Will the Government Get Chevron Deference in King v. Burwell?, by Connor Raso

by Guest Blogger — Wednesday, May 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 […]

A Potentially Lurking Issue in a Recent Cert. Grant

by Andrew Hessick — Wednesday, May 6, 2015@andyhessick

On May 4, the Supreme Court granted certiorari in FERC v. Electric Power Supply Association (and a companion case). The case raises the question whether FERC exceeded its authority in issuing a regulation that gives retail energy customers incentives to reduce electricity consumption. The Federal Power Act (“FPA”) grants FERC the power to regulate the […]

The IRS’s Mercenaries

by Andy Grewal — Tuesday, May 5, 2015

Microsoft Corp. has recently challenged the enforcement of IRS summons regarding some of its international tax planning, arguing that the IRS has flouted the law by allowing Quinn Emanuel Urquhart & Sullivan to participate in an audit of the company. The dispute raises many fundamental questions that a district court has been asked to answer. […]

The Yale JREG Blog Has Joined the Law Professor Blogs Network

by Chris Walker — Tuesday, May 5, 2015@chris_j_walker

As the subheader of the blog now reads and as TaxProf Blog’s Paul Caron announced earlier today, the Yale JREG editors and regular bloggers have decided to join the Law Professor Blogs Network to fill the administrative law void in the network. While I don’t anticipate this changing the substance here, we’re excited about joining the network and […]

Every Regulatory Attorney Always Has Standing to Challenge the Constitutional Design of Her Regulator

by Peter Conti-Brown — Monday, May 4, 2015

So would hold Judge Brett Kavanaugh of the U.S. Court of Appeals for the DC Circuit in a case challenging the constitutionality of the institutional design of the Consumer Financial Protection Bureau. Judge Kavanaugh has written some of the most provocative concurring and dissenting opinions about the constitutional limits and permissions of institutional design, including […]