Tag Archives: Supreme Court

Clarence Thomas the Questioner

by Aaron Nielson — Tuesday, Nov. 1, 2016@Aaron_L_Nielson

Here is a bit of trivia: Did you know that Justice Clarence Thomas once spent nearly 10 minutes asking questions during a single session of oral argument? It’s true–in NASA v. FLRA, argued in 1999. The case concerned the role of agency inspector generals. Thomas, of course, headed a federal agency, and so knows how […]

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 […]

​D.C. Circuit Review – Reviewed: Why does the Supreme Court’s Term End in June?

by Aaron Nielson — Sunday, July 3, 2016@Aaron_L_Nielson

June has come to an end, the Justices have dispersed, and once more, in the words of a young John Roberts, “the Constitution is safe for the summer.” Every year, the Supreme Court rushes to finish up its work before the Fourth of July. And then the Justices are off to Austria, Malta, Arkansas, Italy, […]

The Supreme Court Decides a Huge False Claims Act Case

by Nicholas Bagley — Saturday, June 18, 2016

Yesterday, the Supreme Court decided a False Claims Act suit that has enormous implications for Medicare and Medicaid fraud. The allegations in Universal Health Services v. United States ex rel. Escobar are startling. Yarushka Rivera, a young Medicaid beneficiary, died of an adverse reaction to medication that she’d received to treat her bipolar disorder. After […]

Supreme Court Decisions Have Consequences

by Nicholas Bagley — Wednesday, Apr. 13, 2016

In Gobeille v. Liberty Mutual , the Supreme Court held that ERISA trumps state laws that require self-insured employers to share data on the prices they paid for health care for their employees. Predictably, and sadly, those employers look like they’re taking full advantage (paywalled) of the Court’s decision: Plans that provide health insurance in […]

Federalism and Final Agency Action

by Seth Davis — Monday, Mar. 7, 2016

On March 30th, the Supreme Court will hear oral argument in United States Army Corps of Engineers v. Hawkes Co., Inc. The question presented concerns “final agency action”: Is the Army Corps’ determination that the Clean Water Act applies to waters on private land “final agency action” reviewable under the Administrative Procedure Act? According to […]

The Supreme Court’s Wrongheaded Decision in Gobeille

by Nicholas Bagley — Thursday, Mar. 3, 2016

It never fails. You leave the country for a much-needed vacation and the Supreme Court drops an opinion you’ve been waiting for. On Tuesday, in Gobeille v. Liberty Mutual, the Supreme Court rebuffed Vermont’s effort to lift the veil of secrecy surrounding health-care prices. In an opinion by Justice Kennedy, the Court held that ERISA prevented […]

The Supreme Court Vacancy and the Majoritarian Difficulty, by Daniel Hemel

by Daniel Hemel — Monday, Feb. 22, 2016

A central premise in administrative law is that federal judges lack the democratic legitimacy of executive branch officials. As Justice Scalia put it in City of Arlington v. FCC, “unelected . . . federal judges” are “even less politically accountable” than “unelected federal bureaucrats.” A similar sentiment suffuses Justice Stevens’s opinion for the court in […]

Notice and Comment Ex Post (and Ex Ante), by Daniel Hemel

by Daniel Hemel — Friday, Jan. 29, 2016

My co-blogger Andy Grewal expresses skepticism that the Obama administration can cure the notice-and-comment problem in United States v. Texas by initiating notice-and-comment proceedings now and then promulgating its Deferred Action for Parents of Americans policy as a new final rule. In aprior post, I said it seems “pretty clear” that such an approach would […]