Author Archives: Daniel Hemel

Chevron Step 0.5, by Michael Pollack and Daniel Hemel

by Daniel Hemel — Friday, June 24, 2016

Justice Kennedy’s opinion for the majority in Encino Motorcars, LLC v. Navarro is significant for a number of reasons. For one, it marks the first time that the Supreme Court has used a Perma.cc link in an opinion—a victory for the Harvard Law School Library and its Perma.cc partners in their fight against link rot […]

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Form, Function, and the Fed, by Daniel Hemel

by Daniel Hemel — Sunday, May 22, 2016

I’m neither a constitutional law scholar nor an expert on the Federal Reserve, so I’m reluctant to wade deeper into the debate over the Fed’s constitutionality when I’m already beyond neck deep. In an earlier post, I suggested that “ maybe”—but only maybe—“the Federal Reserve banks are constitutional after all,” a claim that struck me […]

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The President’s Power To Tax Doesn’t Stop at Carried Interest, by Daniel Hemel

by Daniel Hemel — Monday, May 9, 2016

Gretchen Morgenson writes in this week’s New York Times Sunday Business section: There is a lot about this problem of income inequality—and about the economy over all—that Mr. Obama cannot control. Still, there is something he could do right now to help narrow the widening gulf between rich and poor. In one deft move, Mr. […]

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More on Amtrak and “Company A,” by Daniel Hemel

by Daniel Hemel — Wednesday, May 4, 2016

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 […]

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What Makes This Agency Different From All Other Agencies?, by Daniel Hemel

by Daniel Hemel — Saturday, Apr. 30, 2016

A D.C. Circuit panel held today that the Passenger Rail Investment and Improvement Act of 2008 (PRIIA) is unconstitutional. This is the second time the same panel has struck down the PRIIA (the first time the panel was reversed by the Supreme Court). The panel’s primary holding is that “the PRIIA violates the Fifth Amendment’s […]

Maybe the Federal Reserve Banks Are Constitutional After All, by Daniel Hemel

by Daniel Hemel — Monday, Apr. 4, 2016

Thanks to Chris Walker for organizing this online symposium, to the editors of the Yale Journal on Regulation for hosting it on their site, and—most of all—to Peter Conti-Brown for writing a brilliant book. In this post, I’ll take issue with one of Peter’s conclusions—that “the [Federal] Reserve Banks are almost certainly unconstitutional” (p. 107)—but […]

The Supreme Court Vacancy and the Majoritarian Difficulty, by Daniel Hemel

by Daniel Hemel — Monday, Feb. 22, 2016

A central premise in administrative law is that federal judges lack the democratic legitimacy of executive branch officials. As Justice Scalia put it in City of Arlington v. FCC, “unelected . . . federal judges” are “even less politically accountable” than “unelected federal bureaucrats.” A similar sentiment suffuses Justice Stevens’s opinion for the court in […]

President Trump vs. the Bureaucratic State, by Daniel Hemel

by Daniel Hemel — Thursday, Feb. 18, 2016

The betting website PredictIt now puts the odds of Donald Trump winning the White House this November at 22%. I don’t think that estimate is too far off: Trump is ahead in virtually every recent Republican primary poll, and he trails Hillary Clinton by 3.4 percentage points in a general election matchup (according to the […]

Notice and Comment Ex Post (and Ex Ante), by Daniel Hemel

by Daniel Hemel — Friday, Jan. 29, 2016

My co-blogger Andy Grewal expresses skepticism that the Obama administration can cure the notice-and-comment problem in United States v. Texas by initiating notice-and-comment proceedings now and then promulgating its Deferred Action for Parents of Americans policy as a new final rule. In aprior post, I said it seems “pretty clear” that such an approach would […]

Notice and Comment, Behavioral Economics, and United States v. Texas, by Daniel Hemel

by Daniel Hemel — Monday, Jan. 25, 2016

In many respects, the Supreme Court’s cert grant earlier this week in United States v. Texas was utterly unsurprising. The Fifth Circuit Court of Appeals affirmed a nationwide injunction blocking a Department of Homeland Security policy that would have allowed approximately 4 million parents of U.S. citizens and lawful permanent residents to seek “deferred action” […]