Author Archives: Andrew Hessick

Carissa Hessick on the Presumption of Regularity

by Andrew Hessick — Monday, Jan. 14, 2019@andyhessick

One doctrine that often comes up in challenges to government actions is the presumption of regularity. Under the presumption, courts assume that government officials properly discharged their official duties unless there is evidence showing otherwise.  Courts have invoked it to give the government the benefit of the doubt in challenges to agency actions. If there are both […]

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Changes to the Independence of Administrative Law Judges

by Andrew Hessick — Wednesday, July 11, 2018@andyhessick

Yesterday, President Trump issued an Executive Order exempting administrative law judges from the competitive selection process and stripping them of the removal protections provided by civil service regulations. Under the order, agency heads have much broader discretion over the hiring and firing of ALJs. The changes to the hiring process are unsurprising. This term, in […]

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Interpreting Injunctions

by Andrew Hessick — Wednesday, Mar. 14, 2018@andyhessick

Since Attorney General Sessions delivered his speech last week at the Federalist Society’s National Student Convention, there has been a lot of talk about nationwide injunctions—injunctions that prohibit the government from enforcing a law against anyone, as opposed to only against a particular plaintiff. While many people have talked about granting these injunctions, one thing that I […]

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Chevron as a Remedial Limitation

by Andrew Hessick — Saturday, Mar. 10, 2018@andyhessick

Chevron deference, which requires courts to defer to reasonable agency interpretations of statutes that the agency administers, is a central doctrine of administrative law. Despite its importance, Chevron rests on uneasy ground. Critics have raised various legal objections to the doctrine. One is that requiring courts to defer to agency interpretations of statutes violates the […]

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Consenting to Adjudication Outside the Article III Courts

by Andrew Hessick — Wednesday, Sept. 20, 2017@andyhessick

A lot of Supreme Court cases involve the meaning of Article III. Most of those cases address whether the Article III courts have jurisdiction over a particular claim. But a handful of the Article III cases focuses on the converse question—whether a tribunal outside of Article III can adjudicate a claim. Article III “vest[s]” the […]

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Keeping an Eye on Patchak v. Zinke

by Andrew Hessick — Thursday, July 27, 2017@andyhessick

Next term, the Court will hear Patchak v. Zinke, No. 16-498. The case raises an old question about the line between the power of Congress and the power of the federal courts: The extent to which Congress can direct the outcome of a case. Patchak brought suit under the APA challenging the Department of the […]

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Esquivel-Quintana and Chevron

by Andrew Hessick — Wednesday, May 31, 2017@andyhessick

Yesterday, the Court decided Esquivel-Quintana v. Sessions, an immigration case implicating Chevron. Under Chevron, of course, courts and agencies are bound by unambiguous statutes. But if a statute is ambiguous, courts must defer to reasonable interpretations of that statute rendered by the agency charged with interpreting that statute.   One issue underlying Chevron is identifying what […]

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Standing for the New Plaintiffs in the CREW case

by Andrew Hessick — Tuesday, Apr. 18, 2017@andyhessick

Back in January, a group of constitutional law scholars (working with Citizens for Responsibility and Ethics in Washington (CREW)) sued President Trump for violating the Emoluments Clause. In a previous post, I explained argued that those scholars did not have Article III standing because they had not alleged a cognizable injury in fact. Today, the […]

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Abusing Discretion in Sentencing after Beckles

by Andrew Hessick — Tuesday, Mar. 7, 2017@andyhessick

Yesterday, the Supreme Court decided Beckles v. United States. The case involved a challenge to the federal sentencing guidelines. Section 4B1.1 of the U.S. Sentencing Guidelines prescribes a sentencing enhancement for certain criminal defendants if the offense of conviction is a “crime of violence.”  At the time of Beckles’s conviction, the guideline defined “crime of […]

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Washington State’s Standing To Challenge the Immigration Executive Order

by Andrew Hessick — Monday, Feb. 6, 2017@andyhessick

This past week Washington state jumped into the fight against President Trump’s executive order limiting immigration, filing suit in district court in Washington. The district court issued a nationwide temporary stay of the order, and the United States has now appealed to the Ninth Circuit. One of the major issues in the case is whether […]

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