Auer deference is weird. It is different from all the other forms of judicial deference to agency actions. As a result, it has become the topic of some debate. Some, like Justice Scalia, find the doctrine disturbing because it gives agencies the authority to be the legislature, the judiciary, and the executive, resulting in agencies […]
Seminole Rock has a step one inquiry too—and, like Chevron’s step one, it depends on the court’s choice of interpretive method. Chevron’s step one asks whether the authorizing statute “directly” speaks “to the precise question at issue” in the sense of clearly prohibiting or requiring the agency’s position. The method of statutory interpretation that the […]
You might never have heard of Esquivel-Quintana v. Lynch, but it’s potentially the darkhorse case of this year’s Supreme Court Term. Judge Gorsuch’s recent concurrence in Gutierrez-Brizuela v. Lynch questioned the soundness of the Chevron doctrine itself—and in doing so kicked the hornet’s nest of administrative law scholars. Yet Esquivel-Quintana threatens to take a big […]
Most commentary about Auer deference has been theoretical and dramatic. Justice Scalia, for example, both the author of Auer v. Robbins and one of its early critics, decried Auer as an “evil” that allows “tyrannical laws” to be executed in a “tyrannical manner.” In Auer in Action: Deference After Talk America, I argue that this […]
Many unresolved questions weigh heavily on the debate over Auer deference, including: Is Auer deference “stronger” than Chevron deference? How varied are the procedural formats associated with regulatory interpretations that are reviewed under Auer? What would be the administrative burden of reforming Auer by adding a “Step Zero”? In order to provide empirical answers to […]
Steeped in World War II and with inflation growing, the United States sought to avoid repeating the financial mistakes of the first World War and turned for one of the few times in its history to price controls. On the heels of the passage of the Emergency Price Control Act, the Office of Price Administration […]
[Note from Daniel Hemel: Guest poster David Feder, currently an associate at Munger, Tolles & Olson in Los Angeles and formerly a law clerk to Judge Neil Gorsuch on the Tenth Circuit, has written a thoughtful response to my post last week criticizing Judge Gorsuch’s opinion in Gutierrez-Brizuela v. Lynch. This post reflects the views only […]
On June 23, 2016, the Supreme Court issued a 4-4 ruling in the immigration case of United States v. Texas, blocking two “deferred action” programs announced by President Obama on November 20, 2014: extended Deferred Action for Childhood Arrivals (DACA Plus) and Deferred Action for Parents of Americans and Legal Residents (DAPA).[1] The 4-4 ruling […]
A presidential election year provides a good time to reflect on administrative law scholarship addressing presidential transitions. “Midnight rulemaking” is a term used to describe the well-documented phenomenon of an increase in the volume of regulatory activity in the three months preceding a presidential administration. Scholarly literature and policy studies of midnight rulemaking are voluminous. […]
[Editor’s Note: This is Jim Tozzi’s review of Eloise Pasachoff, The President’s Budget as a Source of Agency Policy Control, 125 Yale Law Journal 2182 (2016), which originally appeared here. Jim Tozzi served as a career regulatory official in five consecutive Administrations and was instrumental in the establishment of centralized regulatory review.] Centralized regulatory review began on the “budget […]
The U.S. Government Publishing Office (GPO) has a Government Book Talk! blog which is designed to “raise the profile of the best publications from the Federal Government, past and present.” The latest post is entitled What’s the “CFR” and Why Is It So Important to Me? The post appropriately notes that the Code of Federal Regulations […]
This has been a banner year for the ABA Section of Administrative Law and Regulatory Practice–one that has been full of accomplishments. The Section has set a record for the most program events in its history, including some terrific new programs such as “The 60th Anniversary of the Hoover Commission: Lessons for Regulatory Reform”, the “Great Debate” […]
Last week the Internet buzzed with news of Airbnb’s lawsuit against San Francisco. Dissatisfied with a new ordinance updating and enforcing 2014 regulations of short-term rentals, Airbnb filed suit against the city, arguing that the new ordinance violated both federal law and the federal constitution. The regulations reflect San Francisco’s conclusion, grounded in more than […]
There has been much excitement on the playground of administrative law about the recent decision in Encino Motorcars LLC v. Navarro, in which the Court refused to defer to a Labor Department regulation under the Fair Labor Standards Act. Perhaps because of swirling background debates over Chevron, arbitrariness review, “libertarian administrative law,” and the robustness […]
Thanks to Chris Walker for inviting me to join the conversation about last week’s net neutrality decision. Previous posts by Aaron Nielson and Daniel Deacon did an excellent job highlighting one of the decision’s major themes, the dialogue between the majority and the partial dissent regarding the proper amount of scrutiny to apply to arbitrary […]