As part of a terrific Iowa Law Review Administering Patent Law Symposium, I have spent some time thinking about the constitutional tensions in agency adjudication after the Supreme Court’s decisions last Term in Lucia and Oil States. I’ve just posted a draft of that essay to SSRN. One thing that somewhat surprised me in working through […]
Is Matthew Whitaker’s Appointment Constitutional? An Examination of the Early Vacancies Acts, by Thomas Berry
A debate is raging and litigation has already begun over whether President Trump’s selection of Matthew Whitaker to serve as acting attorney general is constitutional. Just recently, three Democratic senators filed suit arguing that Whitaker’s appointment has unconstitutionally deprived them of their right to vote on his nomination. As this debate unfolds, one crucial piece […]
When Chevron Meets the Hobbs Act: PDR Network v. Carlton & Harris Chiropractic, Inc. (Part I)
“When Chevron meets Hobbs, consideration of the merits must yield to jurisdictional constraints.” Carlton & Harris Chiropractic, Inc. v. PDR Network, 883 F.3d 459 (4th Cir. 2018) The Supreme Court recently granted certiorari in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., Dkt No. 17-1705, (Order List Nov. 13, 2018). The Court framed […]
D.C. Circuit Review – Reviewed: No Opinions This Week … Again
In November 2017, the D.C. Circuit decided a fair number of cases.* Here is a list of the Court’s published opinions: If we go back to November 2016, we see a similar output: November 2015 was a bit more quiet, but still, the Court reached double digits: Why this focus on past years? Because my […]
The CRA Spring Gun May Soon Fire its First Shot
Earlier this month the U.S. Department of Labor (DOL) issued a proposed rule that may turn out to be the first opportunity to test the Congressional Review Act (CRA) post-disapproval restriction on rulemaking. The CRA authorizes Congress to use an expedited process to nullify recent rules. It has been used successfully 17 times, 16 of which […]
Legal Historians Weigh in on the Nationwide Injunction Debate
As regular readers of the blog know, a number of us are very interested in the propriety of nationwide injunctions to enjoin federal agency actions. I’ve blogged a bit about Sam Bray’s APA argument and the new legislation that would limit nationwide injunctions. Nick Bagley has joined Bray in arguing that federal courts should not […]
Why the Proposed House Rule on Income Taxes Would Not Prevent Democrats from Passing Progressive Legislation
House Democrats have proposed that, as part of their changes to the House of Representatives’ rules, income-tax increases on the lowest-earning 80% of taxpayers would require a 3/5ths majority in the House of Representatives. This proposed rule has been attacked as antidemocratic and as an obstacle to passing future, Democratic legislation. However, this rule change would […]
Scrutinizing Trump’s Taxes is in Congress’s Power, by U.S. Rep. Bill Pascrell, Jr.
I read with great interest Andy Grewal’s recent post on plans by House Democrats to compel the release to Congress of Donald Trump’s tax returns. As a Democratic Member of the House of Representatives and the leader of my caucus’s efforts to expose Trump’s financial records to sunlight, I felt it appropriate to respond to […]
2nd Edition Release: A Guide to the Federal Torts Claims Act, by Paul Figley
The ABA Section of Administrative Law and Regulatory Practice just announced the release of the second edition of A Guide to the Federal Torts Claims Act, by Paul Figley. Here’s the description: This practical guide provides a simplified, easy to read concise overview of the Federal Tort Claims Act (FTCA) and its jurisprudence. It is useful […]
The Whitaker Appointment Controversy and Some Potential Collateral Damage
Shortly after the 2018 midterm elections, President Donald Trump accepted Attorney General Jeff Sessions’ resignation. Under a default statutory rule, when the office of Attorney General becomes vacant, the Department of Justice’s Deputy Attorney General may “exercise all the duties of that office.” See 28 U.S.C. § 508. If this provision had applied, Deputy Attorney […]