Tag Archives: Chevron

Will the Supreme Court Revisit Deference Doctrines This Term?

by Jennifer Mascott — Friday, Oct. 6, 2017@jennmascott

Yesterday in his Supreme Court Relist Watch, John Elwood highlighted the Supreme Court’s unusual action this past summer on a cert petition regarding Chevron deference. Mr. Elwood observed that the Supreme Court relisted—again— Scenic America, Inc. v. Department of Transportation, 16-739, which garnered attention this summer when the court called for a reply . . […]

What 2016 Gorsuch Opinions Could Mean for 2017 Re-Argument in Sessions v. Dimaya

by Michael Kagan — Monday, July 3, 2017@MichaelGKagan

At the end of its term, a shorthanded and evidently evenly divided Supreme Court scheduled two immigration cases for re-argument next term when nine justices can hear the cases. Of the two, Sessions v. Dimaya stands out because the ninth and newest justice has very recently issued opinions that seem to bear directly on key […]

Judge Gorsuch and Chevron Doctrine Part III: The Gutierrez-Brizuela Concurring Opinion, by Asher Steinberg

by Guest Blogger — Wednesday, Mar. 29, 2017

This is part three of a three-part series on Judge Gorsuch. Last summer when I was taking the New York bar, I ran into an acquaintance who was an incoming clerk for one of President Trump’s Supreme Court short-listers. At some point she asked me what a judge I knew was “like,” and I replied that […]

Judge Gorsuch and Chevron Doctrine Part II: The Misuse of Precedent, by Asher Steinberg

by Guest Blogger — Tuesday, Mar. 28, 2017

This is part two of a three-part series on Judge Gorsuch. Does Judge Gorsuch care about precedent? The question might seem like asking if Judge Gorsuch cares about stray kittens – of course he cares about precedent. After reading his administrative-law opinions, though, one can wonder. Padilla-Caldera II In Padilla-Caldera v. Gonzales (“Padilla-Caldera I”), the Tenth […]

Judge Gorsuch and Chevron Doctrine Part I: The Misuse of Fact in De Niz Robles, by Asher Steinberg

by Guest Blogger — Monday, Mar. 27, 2017

This is part one of a three-part series on Judge Gorsuch. In the confirmation questionnaire Judge Gorsuch submitted to the Senate Judiciary Committee, he listed Gutierrez-Brizuela v. Lynch first among the list of the ten most significant cases he has decided. It could hardly be otherwise. His concurring opinion in Gutierrez-Brizuela calling for the Court to […]

Keeping Big Cases from Making Bad Law: The Resurgent “Major Questions” Doctrine, by Nathan Richardson

by Guest Blogger — Thursday, Dec. 1, 2016

Who decides what laws passed by Congress mean in practice? As almost everyone knows, usually the courts fulfill this role, citing Marbury v. Madison – “It is emphatically the province and duty of the Judicial Department to say what the law is.” Readers of Notice and Comment are undoubtedly familiar with the large modern exception […]

The D.C. Circuit, the Trump Administration, and Chevron Step One-and-a-Half, by Daniel Hemel and Aaron Nielson

by Guest Blogger — Saturday, Nov. 19, 2016

While many things in Washington will change as a result of last Tuesday’s results, one thing that will not change is the importance of the D.C. Circuit. The nation’s leading administrative law court will continue to review agency actions in the Trump era, including actions based on agency interpretations of the statutes they administer. And […]

More on Justice Scalia’s Doubts About Chevron

by Adam White — Thursday, Nov. 17, 2016

After Justice Scalia’s passing (and even before it), word began to bubble up that he had been seriously rethinking Chevron, given his increasing doubts that the framework was tenable and productive. In the absence of a published opinion, it’s mainly been just the stuff of gossip—although gossip from sufficiently credible sources that I’ve felt confident mentioning it on this […]

D.C. Circuit Review – Reviewed: A Walk in the Wide, Wide World

by Aaron Nielson — Friday, Sept. 9, 2016@Aaron_L_Nielson

Each week I blog about the D.C. Circuit. There is a reason for this. In today’s world, we are flooded with commentary about the Supreme Court—and the law of diminishing returns is real. Thus, although the D.C. Circuit is (probably) less important than the Supreme Court, there is more “bounce to the ounce” in covering […]

The Tenth Circuit vs. Brand X

by Daniel Hemel — Wednesday, Aug. 24, 2016

In the 2005 Brand X decision, the Supreme Court held that “[a] court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet […]