Administrative law is almost certain to undergo monumental change during the Supreme Court’s current Term.  On May 16, 2024, the Court issued its first in a series of blockbuster administrative law decisions: Consumer Financial Protection Bureau v. Community Financial Services Ass’n. The Court’s 7-2 decision declaring the Bureau’s funding structure constitutional brings good news for […]

Soon after the Supreme Court decided West Virginia v. Environmental Protection Agency, we wrote a short analysis outlining the major questions doctrine as laid out by the Court. Our piece was not rocket science. We simply summarized the majority’s test for determining whether an agency’s legal interpretation triggers the doctrine. But as we expected, many […]

As the Supreme Court ponders what to do with Chevron in Loper Bright Enterprises v. Raimondo and Relentless Inc., et al. v. Department of Commerce, Idaho’s Simplot test might provide a way to keep but cabin deference. In 1991, in J.R. Simplot Co. v. Idaho State Tax Comm’n, the Idaho Supreme Court crafted a unique […]

As we await the Supreme Court’s decisions in Relentless and Loper Bright, left-leaning scholars and activists have bemoaned the demise of Chevron deference as harmful to progressive values. But this is not true in at least one area of law: banking. Where Congress enacted incredibly progressive statutes, courts granted Chevron deference to regulators’ interpretations in […]

On April 23, 2024, the FTC voted 3-2 to adopt a final rule prohibiting non-compete agreements in employment contracts. The two Republican Commissioners dissented on a variety of grounds, including that the FTC does not have substantive rulemaking authority under Section 6g of the FTC Act, the major questions doctrine, that the rule is arbitrary […]

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. […]

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 […]