Monthly Archives: June 2018

D.C. Circuit Review – Reviewed: A Special Judge Kavanaugh Edition (Co-Authored by Jenn Mascott)

by Aaron Nielson — Thursday, June 28, 2018@Aaron_L_Nielson

You may have noticed that Notice & Comment has hosted a series of posts highlighting the administrative law views of several judges on President Trump’s list of potential Supreme Court nominees. In light of this week’s big news (and no, we aren’t talking about the D.C. Circuit’s Revised Bills of Costs), it’s time for D.C. […]

The SCOTUS Nomination, Senate Procedure, and Democratic Strategy

by Matt Glassman — Thursday, June 28, 2018@MattGlassman312

With the announcement of Justice Kennedy’s retirement yesterday, many liberals have called on Senate Democrats to take action to block the Senate from confirming a new nominee to the Court. Here are six thoughts on the matter, from a Senate procedure point-of-view. 1.This is a wholly different situation than the Garland nomination in March 2016. In […]

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Judge Raymond Kethledge on Chevron and the Abdication of Article III Power, by Charles J. Cooper and G. Ryan Snyder

by Guest Blogger — Wednesday, June 27, 2018

In our last post, we discussed Judge Kethledge’s longstanding commitment to enforcing the separation of powers. In this post, we will explain how that commitment has shaped his approach to Chevron, which requires judicial deference to agency interpretations of ambiguous statutes. The Constitutional Case Against Chevron Judge Kethledge’s views on Chevron originate with the text […]

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The Appearance of Impartiality in Lucia v. SEC , by Kent Barnett

by Guest Blogger — Wednesday, June 27, 2018

In a narrow decision, the Supreme Court held in Lucia v. SEC that the Securities and Exchange Commission’s administrative law judges are “officers of the United States.” Because they are officers, the Constitution’s Appointments Clause required the Commissioners themselves, not others within the agency, to appoint the ALJs. Upon resolving the appointments question, Lucia teed […]

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A puzzle about standing, resolved.

by Nicholas Bagley — Tuesday, June 26, 2018

A few weeks back, I raised a question about Texas’s latest challenge to the Affordable Care Act: do the plaintiffs even have standing to sue? Now that the Justice Department has thrown in the towel and declined to the defend the statute, that question has become a lot more urgent. To demonstrate standing, Texas and […]

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Administrative Law SSRN Reading List, May 2018 Edition

by Chris Walker — Monday, June 25, 2018@chris_j_walker

Here is the May 2018 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 Bill Funk. There’s a lot of new scholarship on this list, adding signficantly to my summer reading list: Petitioning and the Making of the Administrative State by […]

Health insurance is complicated. In many states, it’s about to get worse.

by Nicholas Bagley — Monday, June 25, 2018

That’s the opening of a piece of mine in the Wall Street Journal (gated, unfortunately) about what states should do in response to the Trump administration’s anticipated relaxation of rules governing short-term plans. Where states allow short-term plans without restriction, the plans will be a lot cheaper than those sold on the exchanges because they don’t have to comply with the ACA. But that low price comes with […]

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The severability question is not hard.

by Nicholas Bagley — Monday, June 25, 2018

In a lengthy blog post about the Texas lawsuit that’s trying to bring down the ACA, Josh Blackman takes aim at an amicus brief filed by a bipartisan group of law professors (including me). The brief argues that the Affordable Care Act should stand, even if the penalty-free individual mandate is held unconstitutional. Blackman isn’t […]

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The Constitutionality of the CFPB Again Before the Courts

by Jennifer Mascott — Monday, June 25, 2018@jennmascott

Amidst the flurry of administrative–law–related opinions that the Supreme Court handed down at the end of last week, an intriguing separation-of-powers-related opinion from the Southern District of New York (SDNY) received comparatively little immediate attention. Last Thursday, Judge Loretta Preska ruled that the Consumer Finance Protection Bureau (CFPB) cannot bring an enforcement action in district […]