Monthly Archives: July 2019

The Rise of the Know-Nothing Judge

by Nicholas Bagley — Monday, July 15, 2019

That’s the headline of a new piece of mine in the Atlantic. It focuses on the oral argument before the Fifth Circuit in Texas v. United States, and the apparent willingness of two Republican-appointed judges to entertain seriously the notion of invalidating the entire ACA. How did it come to this? What the hell is […]

This entry was tagged .

D.C. Circuit Review – Reviewed: October in July

by Aaron Nielson — Friday, July 12, 2019@Aaron_L_Nielson

The D.C. Circuit doesn’t hear cases over the summer, but it sure does issue a lot of opinions. Well, except for this week. Today, the D.C. Circuit heard argument. And this week, the Court only issued two opinions. This doesn’t feel like July at all! The D.C. Circuit stops hearing oral argument in May and […]

This entry was tagged .

Fifth Circuit Review-Reviewed: Circuit-Split Edition, by Shane Pennington

by Guest Blogger — Friday, July 12, 2019

Welcome to another installment of Fifth Circuit Review-Reviewed! As you are no-doubt aware, the Fifth Circuit heard oral argument in Texas v. United States earlier this week, a case challenging the constitutionality of the Affordable Care Act. That case is already getting plenty of attention from many capable commentators, so this post will focus on […]

This entry was tagged .

Delegation, Deference, and the FCC, by Randolph May

by Guest Blogger — Wednesday, July 10, 2019

During the last week of its just-ended term, the Supreme Court handed down two eagerly anticipated decisions with significant implications for administrative law and, indeed, more broadly, for separation of powers constitutional jurisprudence. The two decisions are Gundy v. United States and Kisor v. Wilkie. While there will be thousands of pages in law reviews, […]

Silver bullets, blue pencils, and the future of the ACA

by Nicholas Bagley — Wednesday, July 10, 2019

Yesterday, the Fifth Circuit heard oral argument in Texas v. United States. It was pretty brutal: consistent with the reporting, the two Republican-appointed judges on the panel appeared receptive to the argument that the Affordable Care Act should be declared invalid. (The Democrat-appointed judge was silent.) Just how receptive is hard to say, and it’s […]

This entry was tagged .

Ninth Circuit Review-Reviewed: Supreme Court Puts Wind in Sails of Court’s Critics of Morally Turpitudinous Crimes in Immigration Law, by William Yeatman

by Guest Blogger — Tuesday, July 9, 2019

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to last month’s controversies. On 6th June, a Ninth Circuit panel granted the government’s request to amend the court’s March order in Barbosa v. Barr. While the amendment is incidental, […]

This entry was tagged .

Fighting Against Agencies: Trump and Bolsonaro’s Overcrossing Agendas, by Antônio Sepulveda and Igor De Lazari

by Guest Blogger — Tuesday, July 9, 2019

Good regulation is important to ensure proper functioning of economies and public services, and governments generally, regardless of ideological alignment, have resorted to regulations. However, Presidents occasionally favor limiting government by arguing inter alia that regulations may have negative and unintended consequences and become less effective or burdensome over time. Both the Brazilian and American […]

Background on Texas v. United States

by Nicholas Bagley — Monday, July 8, 2019

The Fifth Circuit will hear oral argument tomorrow in Texas v. United States, a sweeping challenge to the Affordable Care Act arising out of Congress’s decision, in late 2017, to eliminate the penalty for going without insurance. The case should never have been taken seriously. The red states that brought the suit don’t have standing […]

This entry was tagged .

Food Marketing Institute: A Preliminary Assessment (Part II)

by Bernard Bell — Monday, July 8, 2019

Summary:  In this two-part series I discuss the Supreme Court’s June 24, 2019 decision in Food Marketing Institute v. Argus Leader Media, which upended over fifty years of doctrine defining FOIA Exemption 4’s scope, and the decision’s implications. In Food Marketing Institute v. Argus Leader Media, 2019 WL 2570624 (June 24, 2019), the Supreme Court […]

Presidential Transition Teams, GSA, and the FBI: The Three Shell Game, FOIA Style

by Bernard Bell — Saturday, July 6, 2019

The three-shell game, in which a “mark” guesses which of three shells hides a pea, has long been used as a street hustle.  There’s a Freedom of Information Act (“FOIA”) version of the game.  When a presidential transition team engages in communications over systems provided by the General Services Administration (“GSA”), which preserves those records […]