Monthly Archives: September 2016

The fight over the risk corridor program is heating up.

by Nicholas Bagley — Friday, Sept. 23, 2016

From the Wall Street Journal: Congressional Republicans are warning the Obama administration not to settle with insurers that have sued the government over an Affordable Care Act program to compensate them for losses under the law, saying such a move would bypass spending limits set by Congress. I get what the Republicans are doing here. […]

Why SOPRA is Not the Answer, by William Funk

by Guest Blogger — Thursday, Sept. 22, 2016

The Separation of Powers Restoration Act, or more easily known as SOPRA, is not a complicated bill. If enacted, it would amend the Administrative Procedure Act to require courts to decide de novo all questions of law, whether constitutional, statutory, or regulatory. As the House Report makes abundantly clear, the intent is to overrule statutorily […]

Congress Must Act to Restore Accountability to the Regulatory Process, by Senator Orrin G. Hatch

by Guest Blogger — Thursday, Sept. 22, 2016

“[I]t is emphatically the province and duty of the Judicial Department to say what the law is.” These simple, straightforward words constitute Chief Justice John Marshall’s foundational definition in Marbury v. Madison of “the judicial Power” that the Constitution vests in the federal courts. Repeated in countless court decisions, law review articles, and civics textbooks, […]

Now Available: Developments in Administrative Law and Regulatory Practice, 2015, by Michael Tien

by Chris Walker — Thursday, Sept. 22, 2016@chris_j_walker

Are you looking for an additional way to stay on top of developments in administrative law? Well, you’re in luck! The ABA Section of Administrative Law and Regulatory Practice just released its seventeenth edition of Developments in Administrative Law and Regulatory Practice, covering developments in the field during the 2015 calendar year. The paperback, now […]

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Why the Supreme Court Might Not Overrule Seminole Rock, by Conor Clarke

by Guest Blogger — Wednesday, Sept. 21, 2016

Predictions are hard, especially about the future. It’s much safer to hide behind a broad trend: There was a time, just a couple of years ago, when it seemed like Auer and Seminole Rock were not long for this world. Auer’s author, Justice Scalia, turned his back on the doctrine. The tide of scholarly opinion—led […]

Why the Supreme Court Might Overrule Seminole Rock

by Adam White — Wednesday, Sept. 21, 2016

In 1951, when Kenneth Culp Davis published his first comprehensive study of administrative law under the newly enacted APA, he explained that the deference courts give interpretative rules necessarily depends on a range of factors, from “the relative skills of administrators and judges in handling the particular subject matter” to “the extent of judicial confidence […]

Auer as Administrative Common Law, by Gillian Metzger

by Guest Blogger — Wednesday, Sept. 21, 2016

To some, Auer deference stands apart from the rest of administrative law. On the one hand, Auer is distinguished from other forms of deference as uniquely constitutionally problematic, because it grants agencies deference for their own interpretations of their own regulations. This, according to Justice Scalia (accepting an argument raised by his former law clerk, […]

Rejecting Auer: The Utah Supreme Court Shows the Way, by James Phillips & Daniel Ortner

by Guest Blogger — Tuesday, Sept. 20, 2016

For decades, the Supreme Court of Utah reviewed agency action under either express or implicit “delegations of discretion” for abuse of discretion. This approach “proved difficult to apply” and resulted in widely inconsistent decisions that depended on whether a court found that a statute granted an implicit delegation of power. So in 2013 the Utah […]

Between Seminole Rock and a Hard Place: A New Approach to Agency Deference, by Kevin Leske

by Guest Blogger — Tuesday, Sept. 20, 2016

There is no question that there are both weighty constitutional concerns and practical problems with the Seminole Rock doctrine that impede the achievement of consistency, fairness and transparency in our modern administrative state. These concerns coupled with the confusion and inconsistencies in the lower courts when they attempt to apply Seminole Rock’s “plainly erroneous or […]

Seminole Rock and Unintended Consequences

by Aaron Nielson — Tuesday, Sept. 20, 2016@Aaron_L_Nielson

It’s no secret that some people have misgivings about the administrative state—including, most notably, the Chief Justice of the United States. In fact, Chief Justice Roberts believes that the administrative state—with its “‘vast and varied federal bureaucracy’”—presents a “danger” that “cannot be dismissed.” Although “it would be a bit much” to condemn today’s regulatory scheme […]