In a characteristically thoughtful post discussing the D.C. Circuit’s decision in American Association of Railroads v. Department of Transportation, Aaron Nielson writes: Imagine three companies—let’s call them A, B, and C. Each manufactures cars. Imagine further that Congress authorizes A to regulate B and C, and A uses that power to benefit itself, for instance […]
Imagine three companies—let’s call them A, B, and C. Each manufactures cars. Imagine further that Congress authorizes A to regulate B and C, and A uses that power to benefit itself, for instance by requiring B and C to provide valuable inputs to A on preferential terms. Would that be constitutional? Certainly not, at least […]
Summary: A recent district court decision, Texas Medical Association v. HHS, Dkt No. 6:21-CV-425 (E.D. Tex. Feb. 23, 2022), accessible on WESTLAW at Medicare & Medicaid Guide ¶307259 (C.C.H.), 2022 WL 597141, has troubling implications both for agencies’ traditional authority to create rebuttable presumptions and for the scope of Administrative Procedure Act section 553’s “good […]
Last week the D.C. Circuit published six opinions in an early celebration of the new year. The FAA, Amtrak, and arbitration clauses all made appearances in a set of fact-bound opinions with few precedential highlights. I’ve read them all so you don’t have to. For readers of this blog, last week’s highlights included administrative law […]
Just before Christmas, President Joe Biden announced his intent to nominate Judge J. Michelle Childs to fill Judge David Tatel’s seat on the D.C. Circuit. Judge Childs, who has served as a judge on the U.S. District Court for the District of South Carolina since 2010, has had some fascinating experience at the state government […]
Nope!* * It’s been a good run. If you’re interested, here is the complete list of posts: August 2015: Obamacare Round 3? King Solomon and the APA “It was the best of times ….” Can You Keep a Secret? September 2015: The Second Most Important Court? The Future of […]
For all of its encouraging moments, the Justice Department’s “Summit on Modernizing the Administrative Procedure Act” was also replete with reminders that the difficulties of modern administrative law are in large part the ramifications of the light-handed Nondelegation Doctrine. When agencies are given enormous power, we reliably reach for auxiliary precautions to encourage steady, accountable […]
Here at Notice & Comment, I try to come up with a fun* theme each week. This week, however, I’m going to play a get-out-of-fun-theme-free card. The Court decided too many cases. Alas. Here is the rundown. Let’s start with the FERC cases. In Verso Corporation v. FERC, Judge Wilkins (joined by Judges Rogers and […]
While the world has focused on other things this week, a debate has engulfed a narrow, very nerdy slice of Twitter of which I am pleased to be part: Should citations in legal documents be “in-line” or in the footnotes? We don’t shy away from hard issues here at Notice & Comment. So I’ve decided […]
V. Aaron Nielson is always among the most cheerful and helpful of critics. In his review (“Pretend Privatization”), Aaron focuses on what he calls pretend privatization, which he defines in terms of “situations in which the government tries to avoid being labeled as the government, even though it still wants to exercise the powers of […]
Let me begin by apologizing for the delay and by thanking the JREG crew and, of course, Chris Walker, for hosting this symposium and putting together a remarkable roster of essayists. The breadth and depth of the essays are a testament to the strength and vitality of the administrative law community. What’s more, they reflect […]
Jon Michaels has written an important book — and I say that even though I suspect that he and I disagree about many things! Although the administrative state has value, it also “has its share of problems.” For instance, the federal government sometimes overreaches in “ominous” and even “crushing” ways. Like the Chief Justice, I’m […]
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 […]
It is now summer. How do we know this? Sure, you could just go outside and feel the sun.* Or you could look at a calendar. But there is another way. You can count the number of decisions issued by the D.C. Circuit! Come summer, the Court starts issuing lots (and lots) of opinions. This […]
Last September I suggested that those trying to predict the Clean Power Plan outcome by looking at the judges and “counting ‘R’s and ‘D’s” may be in for a surprise. The D.C. Circuit, after all, is serious about its craft and the idea that cases can be predicted this way is — in the words […]