Monthly Archives: September 2019

D.C. Circuit Review – Reviewed: A Question Answered

by Aaron Nielson — Friday, Sept. 20, 2019@Aaron_L_Nielson

A few months back I “wonder[ed] what Judges Randolph and Henderson (the panel majority in Kiyemba) think of today’s decision [in Qassim v. Trump].” We now know the answer, at least for Judge Henderson: She disapproves. Let’s back up. Qassim is about whether procedural due process applies to detainees held at Guantanamo Bay. The D.C. […]

Streamlining Adjudications at the FCC, by Randolph May

by Guest Blogger — Friday, Sept. 20, 2019

On September 3, 2019, the Federal Communications Commission released a Notice of Proposed Rulemaking intended, as the caption of the proceeding has it, to promote “streamlining of administrative hearings.” The agency declares that the “procedures outlined here are designed to supplement the Commission’s current administrative law judge referral process and promote more efficient resolution of […]

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Delegation of Eminent Domain Powers to Private Entities: In Re PennEast Pipeline Co.

by Bernard Bell — Monday, Sept. 16, 2019

Summary:  Does the federal government’s delegation of its power to take property by eminent domain to private entities allow such entities to bring a federal or state action to acquire state-owned property (despite states’ “Eleventh Amendment” immunity? The Natural Gas Act (“NGA”), 15 U.S.C. §§ 717–717z, allows private gas companies to exercise the federal government’s […]

Call for Papers: Federalist Society Article I Initiative Writing Contest on Nondelegation Doctrine

by Christopher J. Walker — Sunday, Sept. 15, 2019@chris_j_walker

From for the Federalist Society website, here are the details on this year’s Article I Initiative Writing Contest: The Nondelegation Doctrine: Intelligible Principle or Unworkable Standard? The Federalist Society’s Article I Initiative is focused on the critical issue of why the modern Congress is not functioning as the most powerful branch as envisioned by the […]

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The Second Circuit’s Botched “Zone of Interests” Analysis in CREW v. Trump

by Andy Grewal — Saturday, Sept. 14, 2019

In CREW v. Trump, some private parties have alleged that President Trump has violated the Constitution’s emoluments clauses through his continued business activities. They believe that the Constitution forbids a President from transacting with foreign or domestic governments, and that President Trump’s doing so harms them. They claim that their businesses compete with the President’s […]

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D.C. Circuit Review – Reviewed: Vacation!

by Aaron Nielson — Friday, Sept. 13, 2019@Aaron_L_Nielson

This will be a quick post. Last week’s theme, you see, was vacation — in the sense of vacatur. This week’s theme is vacation — in the sense of enjoyable travel. Why? Because today I found myself in Washington, D.C. for two separate D.C. Circuit-related investitures. To begin, Chris Landau* took the oath to serve […]

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Federal Circuit Review – Reviewed (At Sporadic Intervals): Second Edition, by Bill Burgess

by Guest Blogger — Friday, Sept. 13, 2019

The D.C. Circuit clearly has an outsized role in the development of administrative law.  But it’s hardly the only court of appeals deciding important administrative law cases.  Other people have posted to highlight the Fifth and Ninth Circuits’ contributions.  This post is to make three points about why the Federal Circuit may have the strongest […]

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Ninth Circuit Review-Reviewed: Kisor’s Coming Out Party, by William Yeatman

by Guest Blogger — Monday, Sept. 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 cases. Unanimous Panel Puts Ninth Circuit’s Stamp on Kisor v Wilkie Administrative law doctrines develop in lower courts within the boundaries set from above by the Supreme […]

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The Solicitor General’s Curious Defense of the Economic Substance Doctrine

by Andy Grewal — Monday, Sept. 9, 2019

The taxpayers in Tucker v. Commissioner recently filed a petition for certiorari with the Supreme Court, asking it to review whether their complex transaction generated benefits under the federal tax code. The Fifth Circuit held that compliance with federal tax statutes was not enough, and that the judge-made economic substance doctrine “empowers the federal courts […]

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Event This Week: “The Future of White House Regulatory Oversight and Cost-Benefit Analysis”

by Adam White — Monday, Sept. 9, 2019

We often think of the modern system of White House regulatory oversight, centered around the Office of Information and Regulatory Affairs, as a well-established framework. And of course, the nearly 40-year-old OIRA has become a significant and respected institution. But against the backdrop of our nearly 250-year-old republic, OIRA is still a very young institution. […]

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