D.C. Circuit Review – Reviewed: An Entire Semester of Admin Law?

by Aaron Nielson — Friday, Apr. 5, 2019@Aaron_L_Nielson

Sorry, another week of traveling!

The big news this week in the D.C. Circuit involves the Bump-Stock Rule — which has been to the Supreme Court this week too. The D.C. Circuit issued its opinion in Guedes v. ATF on Monday (which is unusual). Given that almost an entire week has gone by, you probably already know the bottom-line result. If not, here’s some background. Long story short, a per curiam panel of Judges Srinivasan and Millett upheld the government’s rule classifying bump stocks as machine guns under the National Firearms Act; Judge Henderson dissented.

There is a lot going on in the Court’s decision — so much that it is hard to summarize all of the moving pieces in a blog post. Indeed, I ran across this claim on Twitter: “An entire semester of Admin Law could be taught using this opinion as a starting point.”

That’s a pretty bold claim. Too bold, I submit; you can’t have a semester of Admin Law without Florida East Coast Railway, Seminole Rock, or Black Monday. But that’s a quibble. In fact, the Court does cover a great many major issues in administrative law. Don’t believe me? Let’s do some word searches.

Appointments Clause:

Mootness:

State Farm:

Overton Park:

Nondelegation:

Interpretative Rules:

Chevron*:

Chenery:

Retroactivity:

And this is just a sample! You can’t teach an entire semester of Admin Law from this one case. But even so, that’s a lot of Admin Law.

***

The Court also decided two other cases this week. In McKeever v. Barr, Judge Ginsburg (joined by Judge Katsas) concluded that a “district court does not have the inherent authority [to disclose historically significant grand jury matters] but rather is limited to the exceptions to grand jury secrecy listed in Federal Rule of Criminal Procedure 6(e).” Here is a sample:

Judge Srinivasan dissented.

In Agnew v. Government of the District of Columbia, Judge Pillard (joined by Judges Tatel and Sentelle) rejected a challenge to a D.C. statute that “makes it a misdemeanor ‘to crowd, obstruct, or incommode’ the use of streets, sidewalks, or building entrances, and ‘continue or resume the crowding, obstructing, or incommoding after being instructed by a law enforcement officer to cease’ doing so.” The Court explains that the statute is clear enough to give notice of what is prohibited. Likewise, it “does not criminalize inadvertent conduct, nor does it authorize the police to direct a person to move on if he is not currently or imminently in the way of anyone else’s shared use of the place at issue.” I confess I didn’t know the word “incommode” until reading this opinion:

I don’t teach Criminal Procedure or First Amendment. But if you do, these opinions also wouldn’t be bad ones to assign to your students.

 

* The subject of “Chevron waiver” is important — and this case goes through it at length. Next week I’ll (hopefully) discuss some recent scholarship on the topic. The relationship between Chevron and lenity when statutes have criminal implications is also important. Based on today’s order, I suspect that at least a couple of folks on the Supreme Court are thinking about that issue.

 

D.C. Circuit Review – Reviewed is designed to help you keep track of the nation’s “second most important court” in just five minutes a week. an

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

Leave a Reply

Your email address will not be published. Required fields are marked *