The Judicial Conference of the United States recently directed federal district courts to assign cases that seek broad relief, such as a challenge to a federal regulation, randomly on a district-wide basis. The judicial conference’s guidance follows similar statements by the American Bar Association, proposals to amend the federal rules, and proposed legislation.  In any other era, this minutia of […]

Gun rights’ advocates often quip “The Second Amendment protects the other nine.” Now, the National Rifle Association is hoping in two separate, but related cases that the First Amendment will protect it from what it claims is the State of New York’s unlawful regulatory and administrative enforcement.  On March 18 the Supreme Court will hear NRA […]

It is widely believed that social media is, at least in part, responsible for the deteriorating mental health of America’s adolescents and teens.  Politicians have taken notice, and in an election season they are keen to score points with voters back home.  Yet, succumbing to the pressure to do something by November risks ill-formed legislation.  Such is the […]

The following is a list of the Administrative Law topics in pending and decided cases so far in the Supreme Court’s October 2023 Term.  I made this list for the admin law class I teach this spring at the University of Illinois Chicago because students expressed strong interest in class topics currently at the Court, […]

There is much hubbub over the major questions doctrine. For good reason. The Supreme Court has lately invoked the doctrine to invalidate sweeping regulatory initiatives, such as the EPA’s Clean Power Plan, OSHA’s workplace vaccine mandate, and the CDC’s eviction moratorium. There is now a cottage industry of law reviews trying to make sense of […]

Most legal entities, like corporations, have officers and directors who, together, run the business. Directors sit on the board of directors and collectively govern and oversee the entity. In contrast, officers generally implement the board’s vision and manage the day-to-day operations of the business.  While there is widespread agreement that the roles and responsibilities of officers and […]

Our recent Essay in the Wisconsin Law Review Forward explores the question, what do multiple versions of the major questions doctrine mean for the future of legislation? We observe that, after West Virginia v. EPA, 597 U.S. 697 (2022) and Biden v. Nebraska, 143 S.Ct. 2355 (2023), we now have three versions of the major questions doctrines: The “clear […]

An essay by John McGinnis, “The Rise and Fall of Chevron,” recently caught my eye. McGinnis, now a professor at Northwestern, writes that as a summer legal intern he assisted Deputy Solicitor General Paul Bator in writing the government’s brief in Chevron U.S.A. v. Natural Resources Defense Council back in 1983. Though we’ve never met, I felt a […]

Last month, the Supreme Court heard oral arguments in Loper Bright Enterprises v. Raimando and Relentless Inc. v. Department of Commerce, both of which asked the Court to overrule Chevron. By overruling Chevron, what the parties are really asking is that the Court overrule the two-step test from the beginning of the case, not that the Court overrule the final holding that […]

On Wednesday, the Supreme Court heard oral arguments on a set of stay applications, consolidated under the caption Ohio v. EPA, that ask the Court to block the Environmental Protection Agency’s Good Neighbor Rule. The rule sets out requirements for 23 upwind states to meet their obligations under the Clean Air Act not to contribute to […]

For a half-century, cost-benefit analysis has been a mainstay of the regulatory state. Presidents of both parties have either promulgated or retained executive orders mandating regulatory cost-benefit analysis. Many have sought to expand its scope. While so much about regulatory law and policy polarizes the two parties, cost-benefit analysis finds support among Republicans and Democrats alike. […]

How should courts review the president’s statutory powers? It’s one of the most vexing questions in administrative law.  It’s easiest to state the problem by comparing the president and agencies as delegees of legislative authority. Usually, Congress delegates regulatory authority to administrative agencies. Sometimes, however, Congress delegates directly to the president. Here, each is an […]

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 […]