Later this month the Supreme Court will hear First Amendment challenges to two state laws that regulate the content policies of large social media platforms. NetChoice v. Paxton involves a 2021 Texas statute that makes it unlawful for platforms to restrict content based on “viewpoint.” Moody v. NetChoice, meanwhile, involves a 2021 Florida law that prohibits most moderation of […]

I. Introduction The recent Supreme Court oral arguments in Loper Bright and Relentless demonstrate the potential dire public health consequences of overruling the Chevron doctrine. The Food and Drug Administration (FDA) relies on broad judicial deference granted by Chevron, with the primary goal of utilizing scientific and clinical expertise to protect the health and safety of the public. Through implementation of the Federal […]

If one has enough resolve, one should always be able to find “ascertainable standards” embedded in a regulatory statue.  Ascertainable standards are both (1) policy objectives that the regulatory agency must use in its decision-making, including rulemaking, and (2) what a reviewing court will use when determining if the agency has acted in an “arbitrary and […]

In a recent article, FCC Commissioners Brendan Carr and Nathan Simington interpreted constitutional protections of Texas Law HB20. They describe social media platforms as “dominant” with “market power,” similar to the appellate courts and parties in the NetChoice cases.[1] As economists, my colleagues and I filed an amicus brief in support of neither party in these cases to clarify these economic […]

With the Supreme Court hearing arguments in Garland v. Cargill this term, the Court has been asked to decide the narrow question of whether a bump stock device is a “machinegun” as defined in the National Firearms Act.[1] However, embedded within the case is an issue that raises broad administrative law questions about how the rule of lenity […]

The ABA Section of Administrative Law and Regulatory Practice is seeking nominations for leadership positions on our governing council. Please help us continue our legacy by nominating brilliant thoughtful lawyers with diverse views, perspectives, backgrounds, and roles in the field of administrative law. A nomination can be as simple as a few sentences. That said, […]

Next month, the Supreme Court will hear arguments in constitutional challenges to a pair of laws from Florida and Texas that would force social media sites to disseminate a wide range of third-party speech that they do not wish to carry. FCC Commissioners Brendan Carr and Nathan Simington have written a defense of Texas’s law, HB20, which would require certain […]

The parties’ briefing in Loper Bright and Relentless[1] has utterly ignored statutory sections—and one section in particular—that are crucial for understanding both why the government should lose these cases and, more importantly, why the Chevron doctrine[2] cannot and should not survive in an era of textualism. The relevant statute—the Magnuson-Stevens Fishery Conservation and Management Act—superficially appears complex and hard to understand. […]

Introduction The Supreme Court heard argument last month in Moore v. United States, a case with potentially broad implications for the income tax system. The case involves a challenge by the Moores, two individual taxpayers, to 26 U.S.C. 965, known as the Mandatory Repatriation Tax (“MRT”), which is a provision of the 2017 tax reform legislation. As […]

Big Tech claims a broad First Amendment right to censor user speech. FCC Commissioners Carr and Simington explain why that’s wrong.

On January 17, the Supreme Court will hear oral argument in the closely watched case of Loper Bright Enterprises v. Raimondo. The Court will consider whether to overrule, or at least curtail in one way or another, the deference doctrine articulated in its landmark Chevron v. Nat. Res. Def. Council (1984) decision. As readers of this space know, […]

Now that the grocery giant Kroger has certified its substantial compliance with the Federal Trade Commission’s request for information, the antitrust regulator must decide how to proceed with Kroger’s $24.6 billion acquisition of its rival Albertsons. Kroger happens to be based in Cincinnati, my hometown, where it’s an important part of the corporate base. However, I’m rooting against the […]

On December 5th, the Supreme Court heard oral argument in Moore v. United States, a constitutional challenge to the mandatory repatriation tax (“MRT”) in the 2017 Tax Cuts and Jobs Act.  The case raises basic questions about the scope of Congress’s taxing power, and has the potential to reshape and limit federal taxation.  (Ben Silver had a nice […]

In a pair of cases set for argument in January, the U.S. Supreme Court has been asked to overrule Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. I’m going to suggest that whether Chevron should be overruled isn’t exactly the right question. That’s because Chevron—at least the part of it that most people are interested in—didn’t make binding […]

Artificial intelligence (AI) is kryptonite to the Rule of Law. Where the Rule of Law demands “clear, general, publicly accessible rules laid down in advance,” advances in AI occur for unknown reasons, at unknown times, and with unknown effects. Where the Rule of Law requires prospective regulation, AI advances faster than the courts and Congress can handle. And, where the Rule of Law cautions against […]