Author Archives: Andrew Hessick

A Sleeper Auer Case

by Andrew Hessick — Tuesday, Aug. 23, 2016@andyhessick

Auer deference — the deference an agency receives when interpreting its own regulations — is one of the most powerful tools for the government in administrative law. But the doctrine has faced increasing criticism. Opponents have argued that the doctrine enables agencies to circumvent procedural safeguards by promulgating vague rules through notice and comment and […]

Legislative Efforts to Overturn Chevron

by Andrew Hessick — Saturday, Mar. 19, 2016@andyhessick

Chevron deference is a central feature of administrative law. But criticism of the doctrine has grown recently. One prominent example comes from Justice Thomas’s concurrence last year in Michigan v. EPA, which argued that Chevron deference is inconsistent with the Constitution. Although other justices have said that agencies have grown too powerful, none of those […]

Schwartz and Nelson on the SEC’s Regulation of Conflict Minerals

by Andrew Hessick — Wednesday, Jan. 20, 2016@andyhessick

In Business Roundtable v. SEC, 647 F.3d 1144 (D.C. Cir. 2011), the D.C. Circuit held that the SEC must justify all its regulations promulgated under the National Securities Market Improvement Act through cost benefit analysis. Cost-benefit analysis makes sense for many SEC regulations because they focus on easily quantified matters. But they make less sense […]

Should Judges Who Sit on the Sentencing Commission Rule on the Legality of Sentencing Guidelines?

by Andrew Hessick — Thursday, Oct. 15, 2015@andyhessick

A few weeks ago, in United State v. Matchett, the Eleventh Circuit rejected a void for vagueness challenge to the career offender Sentencing Guideline, U.S.S.G. § 4B1.2(a)(2), which contains language that is identical to statutory language in 18 U.S.C. § 924(e)(2)(B). The U.S. Supreme Court found that statutory language to be unconstitutionally vague at the […]

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Justice Thomas’s Opinions on Administrative Law This Term

by Andrew Hessick — Thursday, July 23, 2015@andyhessick

In recent terms, several justices have expressed concern about the breadth of powers held by administrative agencies. Those views have been expressed in concurrences and dissents. Agencies accordingly have not seen substantial changes to their authority—though one notable exception is King v. Burwell, which resulted in the Court strengthening Chevron step zero by saying that agencies […]

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Mellouli v. Lynch and Brand X

by Andrew Hessick — Tuesday, June 16, 2015@andyhessick

Last week, the Supreme Court decided Mellouli v. Lynch, an immigration adjudication case raisingChevron issues. Chris Walker and Patrick Glen have written excellent posts on the decision here and here, but I thought I would add a few more thoughts. At issue in the case was the BIA’s interpretation of 8 U.S.C. § 1227(a)(2)(B)(i), which authorizes […]

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Zivotofsky and Spokeo

by Andrew Hessick — Monday, May 18, 2015@andyhessick

Last week, Will Baude published a column in the New York Times, available here, arguing that the Court should postpone deciding Zivotofsky v. Kerry, a case already argued this term, until it decidesSpokeo v. Robins, which is slated for next term. The two cases seem quite different. Zivotofsky is about Congress’s and the President’s power […]

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Chris Walker on Agency Interpretation

by Andrew Hessick — Friday, May 15, 2015@andyhessick

Administrative agencies regularly interpret statutes in the course of rulemaking, but there is little data about how they go about interpreting those statutes. Do the rulemakers rely on canons of interpretation? Do they look at legislative history? These questions are important for many reasons, one of which is whether agencies act as faithful agents of […]

A Potentially Lurking Issue in a Recent Cert. Grant

by Andrew Hessick — Wednesday, May 6, 2015@andyhessick

On May 4, the Supreme Court granted certiorari in FERC v. Electric Power Supply Association (and a companion case). The case raises the question whether FERC exceeded its authority in issuing a regulation that gives retail energy customers incentives to reduce electricity consumption. The Federal Power Act (“FPA”) grants FERC the power to regulate the […]

The Incompatibility Clause and a Recent Rulemaking

by Andrew Hessick — Friday, May 1, 2015@andyhessick

Yesterday saw a fight over the Department of Defense’s proposed rule that would protect military families from predatory lending. The proposed regulation seeks to implement the Military Lending Act, which caps interest rates on loans to service members, by closing loopholes that have allow finance companies to continue offering high-interest loans to enlisted personnel. A […]

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