Our Constitution is not and never was perfect. The Framers intended for it to undergo amendment as required to maintain the spirit of the Revolution and to prevent the recurrence of the weaknesses that saddled our government under the Articles of Confederation. Yet, amending the Constitution has become nearly impossible in our current political environment. […]
As evidenced by the confusion expressed by multiple Justices in last Term’s Gonzalez v. Google, there is little consensus as to the scope of Section 230, the law that broadly immunizes internet platforms from liability for third-party content. This is particularly striking given that no statute has had a bigger impact on the internet than Section […]
A North Dakota truck stop opened its doors in 2018. It pays debit card “swipe fees” to banks at the maximum rate set by Federal Reserve regulations promulgated in 2011. May it challenge the regulations under the Administrative Procedure Act, or APA, as (1) arbitrary and capricious and (2) ultra vires, or in excess of […]
Antitrust scrutiny of “big tech” is hardly new, but the Justice Department’s recent monopolization case against Apple caps an unprecedented federal antitrust offensive against major tech firms. There are at least five open monopolization matters, beginning with the DOJ’s 2020 Google search complaint, and followed by cases against Facebook/Meta, Amazon, a second case against Google […]
In a spirit similar to that of recent great posts in this forum, this blog post suggests yet another way agencies can preemptively insulate certain rules from Major Questions Doctrine (MQD) challenges. In particular, we focus on how overlapping federal, state and international regulatory regimes may reduce the incremental costs of rulemakings, and therefore weigh against a finding […]
Background The SECURE 2.0 Act (“SECURE 2.0” or “the Act”) contains a host of recent changes intended to make sure employers, the federal government, and the retirement plan industry are helping Americans save more for retirement. Enacted on December 29, 2022, SECURE 2.0 is an extension of the Setting Every Community Up for Retirement Enhancement […]
Prior to the COVID pandemic, most broadband service providers (“BSPs”) offered heavily discounted but capable internet plans to lower-income households for about $10 to $15 per month. Dissatisfied with these market-based solutions, the Infrastructure Investment and Jobs Act of 2021 (“IIJA”) established the “Affordable Connectivity Program” or “ACP.” Under the ACP, the federal government provides a $30 per month […]
This week the George Mason Law Review published the accompanying print issue to its Fall 2023 Symposium, Chevron on Trial: The Supreme Court and the Future of Agency Authority and Expertise. The focus of the symposium was the fate of Chevron deference in light of the Supreme Court’s pending decisions in Loper Bright Enterprises v. […]
There has been a quiet but noteworthy development in the litigation of the Environmental Protection Agency’s Good Neighbor Rule—adding a new administrative law wrinkle to a case with already big administrative law implications. On February 21, the Supreme Court heard oral argument on a set of stay applications, consolidated under Ohio v. EPA, that ask the Court to block […]
Earlier this week, Max Sarinsky published an excellent piece about how agencies could get ahead of major questions doctrine (MQD) challenges to new rules. That blog post, which drew heavily from Sarinsky’s new law review article with Richard Revesz, argues that agencies should follow the lead of the Environmental Protection Agency and articulate specific regulatory antecedents to […]
Our constitutional order contains an “anti-power-accumulation principle.” This principle has three components: first, power must be formally and functionally exercised exclusively by the intended actor–be it the state or federal government, one of the branches within those respective governments, or the people, whether as individuals or acting through a formal or informal association, such as a corporation; second, there […]
The Justice Department’s March 21, 2024 monopolization lawsuit against Apple implements the last piece of an agreement reached between the FTC and DOJ in June of 2019 ceding Facebook/Meta and Amazon to the FTC and Google and Apple to the DOJ. There was never much of a question about whether the federal agencies and their state Attorney General counterparts would launch […]
Corner Post v. Board of Governors of the Federal Reserve System,[1] recently argued in the Supreme Court, mainly concerns the limitations period for judicial review of agency decisions. The case also raises issues about administrative law remedies, which came up briefly at the argument. Important for both sets of issues is that Corner Post, a private […]
In a forthcoming law review article, Richard Revesz and I contend that agencies should preemptively rebut challenges under the major questions doctrine by drawing parallels to past agency actions. A recent federal regulation offers a template for this analysis. In its pollution standards for new vehicles issued last week, the Environmental Protection Agency extensively responded to claims that […]
In SEC v. Jarkesy, the Supreme Court is poised to hold that whenever the SEC seeks to impose monetary penalties on enforcement targets for securities fraud, it must proceed in federal court and not inside its own administrative forum. Many observers predict such a holding would significantly impact SEC enforcement. But maybe not. In a new paper, […]