The consumer welfare standard has been the lodestar of antitrust policy for decades. Yet after the election of President Joe Biden and rise of the Neo-Brandeisian movement, the Department of Justice and the Federal Trade Commission often dismissed the consumer welfare standard and instead attempted to use antitrust to achieve other progressive societal goals such […]
When the Supreme Court overturned the Chevron doctrine in Loper Bright Enterprises v. Raimondo, it purported to leave intact the holdings of cases decided under Chevron. Chief Justice Roberts wrote that “we do not call into question prior cases that relied on the Chevron framework. The holdings of these cases that specific agency actions are lawful—including […]
The U.S. DOGE Service seems to be everywhere these days—at eighteen agencies and counting, according to reports. “USDS” or “DOGE” has reportedly driven many of the Trump administration’s most controversial actions, including the administration’s efforts to slash federal spending and disrupt the civil service. And yet substantial questions remain as to what, exactly, USDS is: […]
Since the Supreme Court announced the arrival of the major questions doctrine in West Virginia v. EPA in 2022, federal appellate courts have struggled to apply the doctrine’s amorphous standards with any consistency both across and within circuits. Perhaps no court better demonstrates this problem than the U.S. Court of Appeals for the Fifth Circuit. […]
In U.S. v. Arthrex, the Supreme Court in an opinion by Chief Justice Roberts held that administrative patent judges (APJs) were not inferior officers for purposes of the Appointments Clause since their decisions were not reviewable by any executive branch officer. While the result in the case may very well accord with the Constitution’s original […]
Since the inception of his second term, domestic media has reveled in criticizing President Trump’s every act, from policy decisions to his executive orders. Their latest target of ire is his proposed tariffs against Mexico, Canada, and China aimed to address undocumented immigration and curb the inflow of fentanyl. For instance, the Associated Press asked: […]
As readers are no doubt aware, the Trump administration has attempted to “pause” various spending programs for an initial period at the start of Trump’s new term. Two first-day executive orders mandated such pauses for certain grants and foreign aid pending a review for compliance with administration policies. On January 27, the Office of Management […]
INTRODUCTION In the aftermath of Donald Trump’s return to the White House, a flurry of executive orders and memoranda has once again brought the concept of “national emergency” to the forefront of American governance. Within hours of taking office, the administration declared a “national emergency at the southern border,” villainized immigration, and raised the specter […]
On January 27, the Trump administration directed federal agencies to pause the obligation and disbursement of all federal financial assistance. This is the first shot in an impending struggle over impoundment, which is a President’s refusal to spend Congressional appropriations on time, or at all. Former Trump administration officials and current nominees for the new administration have repeatedly argued that the President has […]
An argument lurking just beneath the surface in a pending Fifth Circuit case could stem the bleeding from the Supreme Court’s decision in SEC v. Jarkesy. Last summer, Jarkesy held that agencies seeking to impose monetary penalties on enforcement targets for securities fraud and other common law-ish claims must proceed in court, not their own administrative forums. Now, Burgess v. […]
On Tuesday, many law students received a rather unfortunate email from the Department of Justice’s (DOJ) Office of Attorney Recruitment & Management. The email read: “This email is about your application to the Attorney General’s Honors Program. Pursuant to the hiring freeze announced January 20, 2025, your job offer has been revoked.” Soon, rumors spread […]
In a recent post in this space, “The (Likely) End of the FCC’s Long-Running Net Neutrality Saga,” I explained why the Court of Appeals for the Sixth Circuit’s decision in Ohio Telecom Association v. FCC on January 2 likely signals the end of the FCC’s lengthy history of imposing, abandoning, and reimposing “net neutrality” mandates on Internet service providers, […]
Doctors learn about removing stitches. Dentists train to take off those pesky braces. Lawyers, however, spend little of their education studying when a law needs to come off the books. This isn’t a new problem. As noted by Karl Llewellyn in 1935, law students come to think that “for too much law, more law will be […]
Six years after the Supreme Court took on the question in Gundy v. United States, 588 U.S. 128 (2019), of when, if ever, Congress has unconstitutionally delegated legislative power to the executive branch, the Court will try again to articulate a standard that a majority of the Court can accept. The case is FCC v. […]
Loper Bright Enterprises v. Raimondo, of course, overruled Chevron v. NRDC, ending judicial deference to administrative agencies conferred by ambiguous statutory language. The opinion also acknowledged that in many statutory provisions, Congress delegates discretionary authority to administrative agencies. If so, agencies rather than courts have primary responsibility for interpreting the statutory language. Professor Chris Walker has called […]