Over the past several years, the conservative legal movement and corporate interests have enjoyed one administrative law victory after another. Admirers of the administrative state have watched in general dismay as regulators’ ability to protect the public health, the environment, and worker safety and organizing rights has dwindled. Despite their chagrin over these developments, progressives […]
As Chris Walker has explained, he and Mike Kagan recently filed this amicus brief urging the Ninth Circuit to rehear en banc a case that involves a question of exceptional importance: how to reconcile Skidmore “respect” for an agency’s interpretation with the central holding of Loper Bright. The amicus brief argues that, in “the guise of giving Skidmore ‘respect’ to a precedential statutory-interpretation decision […]
In July, the Fifth Circuit ruled in Nuclear Regulatory Commission v. Texas that the Nuclear Regulatory Commission (NRC) does not have the legal authority to issue licenses for private companies to store spent nuclear fuel at locations away from reactors. The court’s decision rests in part on a cursory and strained application of the major questions doctrine. […]
We appreciate receiving attention, even if critical, from one of America’s most powerful conservative organizations. Americans for Prosperity (AFP), a libertarian and fiscally conservative advocacy group, has been widely recognized as one of the most influential conservative organizations in American politics. While we appreciate the attention Kevin Schmidt and Thomas Kimbrell of AFP have given […]
What if instead of unlawfully abusing emergency powers for bad things, presidents unlawfully abused them for “good” things? That’s the argument Berkeley Law Professors Elena Chachko and Katerina Linos make in their paper “Emergency Powers for Good,” published in the William & Mary Law Review. They reiterate that emergency powers are often abused by democracies and […]
On April 11, 2025, the NYU Law Review and the Institute for Policy Integrity at NYU School of Law will host a full-day symposium that will explore Where Does Administrative Law Go from Here? The symposium will feature a keynote address from Ricky Revesz, currently the Administrator of the Office of Information and Regulatory Affairs and […]
Every administrative law student knows that a private litigant challenging an agency action must first establish an injury-in-fact. But in addition, the zone-of-interests test further requires that the litigant’s interest be “arguably within the zone of interests to be protected or regulated by the statute.” Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 […]
Next month, the Fourth Circuit will consider a legal argument that could help patch the hole ripped open by the Supreme Court in SEC v. Jarkesy. Jarkesy held that agencies seeking to impose monetary penalties on enforcement targets for securities fraud and other common law-ish claims must proceed in federal court, not their own administrative forums. The Fourth […]
The Supreme Court’s landmark decision in Ohio v. American Express (Amex) remains central to the enforcement of antitrust laws involving digital markets. The decision established a framework to assess business conduct involving transactional, multisided platforms from both an economic and legal perspective. At its crux, the Court in Amex integrated both the relevant market and […]
Universal remedies are hot, and a number of scholars have weighed in on the specific question of whether the Administrative Procedure Act authorizes a separate remedy of vacatur (sometimes called “universal vacatur”). The leading contributions so far are by, in alphabetical order, Adler, Bamzai, Bremer, Harrison (x2, x3), Levin, Mizelle, and Sohoni (x2). At the […]
As the presidential election approaches, the Committee on Foreign Investment in the United States (“CFIUS”) has increasingly come into the public spotlight. CFIUS, an interagency committee chaired by the Secretary of the Treasury, reviews the potential national security risks of certain foreign investments. At CFIUS’ recommendation, the President may suspend, prohibit, or unwind transactions that threaten […]
The Northern District of Texas just declared two federal statutes unconstitutional—in part on Commerce Clause grounds. The government has appealed to the Fifth Circuit. And if the case proceeds to decision on appeal, the Fifth Circuit will have an opportunity to issue one of the most consequential appellate decisions in the modern era on the reach of […]
Please join me in congratulating Professors Neal Devins and David E. Lewis for winning the ABA Administrative Law and Regulatory Practice Section’s 2024 Annual Scholarship Award, which recognizes the best scholarly work published in the field of administrative law during 2023. Our selection process was rigorous. The committee examined numerous articles and books published during […]
In Loper Bright v. Raimondo, the Supreme Court ruled that Section 706 of the Administrative Procedure Act (APA) prohibits courts from deferring under Chevron v. NRDC to agency interpretations of statutes. What, if anything, does that holding mean for the deference courts give agency interpretations of regulations under Auer v. Robbins? On one reading of Loper Bright, Auer is no longer good law. That’s because both Auer and Chevron require courts to defer […]
The Supreme Court decision in Loper Bright, which overruled the Chevron precedent that courts will defer to reasonable agency interpretations of law, has caused no small measure of controversy. Indeed, the decision has been the subject of political invective along party political lines, with Democrats in particular criticizing the decision. In this note we cannot hope to quell such criticisms, […]