Monthly Archives: September 2017

Loss in Anti-Inversion Case Strikes Potentially Major Blow on IRS’s Rulemaking Authority

by Andy Grewal — Saturday, Sept. 30, 2017

In Chamber of Commerce et al. v. IRS et al., the plaintiffs scored a major victory in their challenge to the validity of some “anti-inversion” regulations issued under Section 7874 of the Internal Revenue Code. That statute, generally speaking, limits the tax benefits that might otherwise arise when a U.S. company re-incorporates as a foreign […]

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D.C. Circuit Review – Reviewed: En Banc Review

by Aaron Nielson — Saturday, Sept. 30, 2017@Aaron_L_Nielson

The D.C. Circuit did a noteworthy yet routine thing this week — it denied rehearing en banc in Wrenn v. District of Columbia, the Court’s recent Second Amendment case. No judge even called for a vote. Why is this “noteworthy”? Because Wrenn addressed a constitutional issue and the panel opinion prompted a dissent. So why […]

Faux Federalism

by Nicholas Bagley — Thursday, Sept. 28, 2017

The following is an op-ed that I was shopping around for publication prior to the demise of Graham-Cassidy. It’s obviously less urgent now, but I wanted to put it out there as a time-capsule in case the bill is revived. The op-ed relates to the penultimate version of the bill, not the one that finally […]

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Webley on Verbose Rulemaking Preambles (AdLaw Bridge Series)

by Emily Bremer — Monday, Sept. 25, 2017@emilysbremer

Alec Anthony Webley has an interesting article, Seeing through a Preamble, Darkly: Administrative Verbosity in an Age of Populism and ‘Fake News’, forthcoming in the Administrative Law Review.  The article argues that the purpose of the APA’s requirement that agencies provide a “concise general statement of [a rule’s] basis and purpose” is defeated by the length […]

The amended version of Graham-Cassidy is a mess

by Nicholas Bagley — Monday, Sept. 25, 2017

The revised bill was leaked last night and will apparently be unveiled today. The reporting has suggested that it’s worse than before. Not only is Graham-Cassidy now full of bribes and giveaways to lure hesitant senators, but it also makes it much easier for states to avoid the application of the ACA’s insurance regulations. That’s […]

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Does Auer/Chevron Deference Apply to State Agency Interpretations of Federal Law?

by Christopher J. Walker — Thursday, Sept. 21, 2017@chris_j_walker

In Grand Canyon Trust v. Energy Fuels Resources (U.S.A.) Inc., Judge Waddoups of the U.S. District Court for the District of Utah concluded that a state agency is entitled to “some deference” as to an interpretation by the Utah Department of Air Quality (DAQ) of the Clean Air Act and its implementing regulations. Here’s the key part […]

ACS’s Richard D. Cudahy Writing Competition on Regulatory and Administrative Law

by Christopher J. Walker — Wednesday, Sept. 20, 2017@chris_j_walker

This annual adlaw paper competition by the American Constitution Society always picks a great winner (list of prior winners here), which should come as no surprise based on the amazing group of judges who participate each year. Paper submission deadline is in February, and here are the full details from the ACS’s website: The American […]

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Consenting to Adjudication Outside the Article III Courts

by Andrew Hessick — Wednesday, Sept. 20, 2017@andyhessick

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 […]

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The Regulators: Our Invisible Government (1982 PBS documentary now on C-SPAN)

by Christopher J. Walker — Monday, Sept. 18, 2017@chris_j_walker

Many of us remember seeing the 1982 PBS documentary The Regulators: Our Invisible Government in our administrative law course in law school. C-SPAN has made this instant adlaw classic available for public viewing on its website here. [HT Linda Jellum!] Here’s a summary of the documentary from C-SPAN: The Regulators The Regulators: Our Invisible Government is a 1982 […]

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