Tag Archives: SCOTUS

Delegation, Deference, and the FCC, by Randolph May

by Guest Blogger — Wednesday, July 10, 2019

During the last week of its just-ended term, the Supreme Court handed down two eagerly anticipated decisions with significant implications for administrative law and, indeed, more broadly, for separation of powers constitutional jurisprudence. The two decisions are Gundy v. United States and Kisor v. Wilkie. While there will be thousands of pages in law reviews, […]

Auer is Dead; Long Live Auer, by Evan Bernick

by Guest Blogger — Friday, June 28, 2019

Four years ago, Michael Herz published a fascinating article in which he argued that separation-of-powers devotees should stop worrying about Chevron deference. However it might once have been understood, Herz argued that Chevron deference descriptively was and normatively ought to be understood in 2015 as a two-step process that allowed both the judicial and the […]

My SCOTUSblog Opinion Analysis of PDR Network v. Carlton & Harris Chiropratic

by Christopher J. Walker — Tuesday, June 25, 2019@chris_j_walker

Over at SCOTUSblog last Friday, I did a quick opinion analysis of the Supreme Court’s  decision in PDR Network v. Carlton & Harris Chiropractic. Here’s a snippet from that post: Yesterday the Supreme Court handed down its decision in PDR Network v. Carlton & Harris Chiropractic. The court unanimously agreed to vacate and remand the case to the U.S. Court […]

SCOTUSblog Argument Preview: Azar v. Allina Health Services

by Bridget C.E. Dooling — Wednesday, Jan. 9, 2019@BridgetDooling

Over at SCOTUSblog, health law and admin law dynamos Abbe R. Gluck and Anne Joseph O’Connell joined forces to write a helpful argument preview for a case that will be argued at the Supreme Court next week. Azar v. Allina Health Services is both a Medicare case and an interpretive rule case; a complexity two-fer, if […]

The Takings Clause, the Tucker Act, and Knick v. Township of Scott, by Aditya Bamzai & David N. Goldman

by Guest Blogger — Tuesday, Oct. 9, 2018

Last week, the Supreme Court heard oral argument in Knick v. Township of Scott, a case that presents the question whether “the Court should reconsider the portion of Williamson County Regional Planning Commission v. Hamilton Bank, requiring property owners to exhaust state court remedies to ripen federal takings claims.” At issue in Knick is the […]

Over at SCOTUSblog: Kavanaugh on Administrative Law and Separation of Powers

by Christopher J. Walker — Thursday, July 26, 2018@chris_j_walker

Over at SCOTUSblog, I have a post today examining Judge Kavanaugh’s administrative law jurisprudence and his potential impact on administrative law and regulatory practice if he were to fill Justice Kennedy’s seat on the Supreme Court. Here’s a snippet (of a nearly 4,000-word post): In reviewing Kavanaugh’s robust record on administrative law, I find myself […]

Brett Kavanaugh and the Case of the Brazilian Gauchos

by Michael Kagan — Tuesday, July 24, 2018@MichaelGKagan

Because he sat on the D.C. Circuit, Supreme Court nominee Brett Kavanaugh did not decide many immigration cases. There are no immigration courts in the District of Columbia. As a result, petitions for review of orders of removal — the most common type of immigration appeal in the federal courts — do not reach his […]

New Supreme Court Cert Petition to Overrule Auer Deference: Kisor v. O’Rourke

by Christopher J. Walker — Monday, July 9, 2018@chris_j_walker

Here at Notice and Comment two years ago, we did an online symposium on the future of Auer (aka Seminole Rock) deference — the doctrine that commands courts to defer to a federal agency’s interpretation of its own regulation unless the agency’s interpretation is “plainly erroneous or inconsistent with the regulation.” In recent years, as I detail […]

Trump’s 2018 Supreme Court Shortlist and Their Views on Administrative Law

by Christopher J. Walker — Wednesday, July 4, 2018@chris_j_walker

President Trump has announced that next Monday, July 9th, he will nominate someone to fill the Supreme Court vacancy left by Justice Kennedy’s retirement last week. According to David Lat, who is arguably the best source on judicial nominations in the Trump Administration, President Trump has interviewed four candidates so far. Here at the Notice […]

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The Future of Chevron Deference: Of Zombie Fungus and Acoustic Separation, by Jeffrey Pojanowski

by Guest Blogger — Thursday, June 21, 2018

The Supreme Court tossed a proverbial squib into the administrative law world this morning, and the takes, hot and otherwise, are sparking everywhere. It handed down three decisions with implications for administrative law: Lucia v. SEC, Pereira v. Sessions, and Wisconsin Central Ltd. v. United States. Lucia, which already had its own symposium on this […]