With the demise of Chevron deference, another significant deference doctrine warrants renewed examination:  the judicial deference accorded an agency’s findings of facts during an administrative hearing.  Courts have deferred to an agency’s decision when it is supported by substantial evidence by giving one word used twice in the Administrative Procedure Act (“APA”) two opposite meanings; one requires deference in the extreme, […]

During the past Term, the Supreme Court issued a series of landmark decisions upending longstanding interpretations of administrative law. These decisions have important implications not only in the context of those particular cases, but also in the larger framework of how judicial review of agency action is developing.  The Four Decisions In one case, SEC v. […]

Last week, the en banc Fifth Circuit, by vote of 9 to 7, issued an opinion holding that a provision of the Telecommunications Act of 1996 violates the nondelegation doctrine, creating a circuit split.  The opinion spends four pages discussing my article A Critical Assessment of the Originalist Case Against Administrative Regulatory Power, 130 Yale L.J. 1288 (2021), and Philip Hamburger’s […]

I’ve never been a fan of Chevron.  In particular, I didn’t like the game-playing around step one or all the confusion about step zero or step two.  Mostly I disliked the rigidity of Chevron. Assuming textual ambiguity of the statute, deference to an agency’s interpretation is sometimes warranted, sometimes not.  As a result, I prefer the Skidmore approach which grants weight to the […]

In November 2022, Attorney General Merrick Garland appointed Jack Smith as a special counsel to investigate former President Donald Trump’s attempts to stay in power after the 2020 election. Smith is currently prosecuting Trump in two separate cases, one in Washington, D.C., and the other in Florida. But the Florida prosecution was recently upended by Judge Aileen […]

Statutory mandates to establish minimum thresholds for hazards that pose an unquantifiable risk of harm put regulators in a bind. And the Supreme Court’s administrative law decisions this term have exacerbated the problem.  Consider, for example, the FDA’s current struggle to regulate agricultural water quality.  Fresh produce, once considered the healthiest of foods, has become a major […]

Chevron is dead, however deference may very well be alive. The majority in Loper Bright Enterprises v. Raimondo articulated no intelligible principle of deference other than tacit acknowledgement of Skidmore deference and potentially laying the path for de novo review. Nonetheless, some scholars have acknowledged that lower courts may function in fundamentally similar ways when […]

The Supreme Court’s recent decision in SEC v. Jarkesy seems destined to upend much federal regulatory enforcement.  A further potential consequence may be coming for state enforcement.  Whether state regulatory programs are vulnerable to a Jarkesy limitation depends on whether Jarkesy depends solely on the Seventh Amendment, or is a collaboration between the Seventh Amendment and Article III. Jarkesy dealt […]