Tag Archives: Supreme Court

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 […]

Notice and Comment, Behavioral Economics, and United States v. Texas, by Daniel Hemel

by Daniel Hemel — Monday, Jan. 25, 2016

In many respects, the Supreme Court’s cert grant earlier this week in United States v. Texas was utterly unsurprising. The Fifth Circuit Court of Appeals affirmed a nationwide injunction blocking a Department of Homeland Security policy that would have allowed approximately 4 million parents of U.S. citizens and lawful permanent residents to seek “deferred action” […]

D.C. Circuit Review – Reviewed: Of Dogs and Lions, Heads and Tails

by Aaron Nielson — Saturday, Nov. 14, 2015@Aaron_L_Nielson

Pluto is a dog; Goofy is a dog. Pluto scampers about in the buff with only a slobbery femur to chew on; Goofy wears comfortable clothes and manages a moderately expensive restaurant. This, of course, is not a novel observation about “cartoon doghood,“ but it does illustrate a principle: not all dogs are created equal. […]

No One Should Be Waiting in Lines (or the Power of Regulatory Design)

by Aaron Nielson — Tuesday, Oct. 6, 2015@Aaron_L_Nielson

Yesterday the Supreme Court made this rule change: “Beginning in October Term 2015, only Bar members who actually intend to attend argument will be allowed in the line for the Bar section; ‘line standers’ will not be permitted.” Orin Kerr asks “Why have different rules for the Bar line and the public line?” And I’m […]

State Litigation Against Presidential Administration

by Seth Davis — Tuesday, Aug. 11, 2015

Sometimes a gridlocked Congress means that an energized President and ambitious state lawmakers compete to solve the Nation’s social problems. But this competition may not make for innovative solutions. Instead, it may make more for more gridlock. Consider Texas v. United States. There a cadre of states have sued to stop President Obama’s deferred action […]

Degrading the Judicial Power

by Andy Grewal — Wednesday, June 3, 2015

In a characteristically thoughtful post, Professor Richard Re examines whether the transfer of an increasing number of cases to Article I legislative courts could pose a threat to the Article III judicial power exercised by federal district courts. He writes in the context of Wellness International Network v. Sharif, which sanctioned some exercise of the […]