This week I want to try something new. I’ve been thinking about the future of administrative law and have some thoughts for Congress. So why not write a letter? Dear Congress: There are “swirling rumors” that the Senate may pass the Separation of Powers Restoration Act (“SOPRA”) (the House has already passed it). If this […]
Last week, Adrian Vermeule posted thoughts here on the Separation of Powers Restoration Act (“SOPRA”). In the words of Bill Funk, SOPRA “would amend the Administrative Procedure Act to require courts to decide de novo all questions of law, whether constitutional, statutory, or regulatory. As the House Report makes abundantly clear, the intent is to […]
This week has been, shall we say, an eventful one. With so many stories to choose from, I’ve wondered what I should write about. For instance, what is going to happen in PHH Corp v. CFPB? That decision has become much more important. Now that “for cause” removal for the CFPB Director is gone, presumably […]
Earlier this year,* I moderated a teleforum for the ABA Section of Administrative Law and Regulatory Practice’s Rulemaking Committee on the Congressional Review Act. You can access the recording for free here. The panel discusses the CRA from a number of different perspectives. After the events of this week, the CRA has become much more […]
Today is an important anniversary: 25 years ago, on November 5, 1991, Justice Clarence Thomas asked his first question as a member of the U.S. Supreme Court. Earlier this week, I posted an essay I co-authored with RonNell Andersen Jones that collects and analyzes his questions. Today, I’ll use D.C. Circuit Review – Reviewed to […]
Here is a bit of trivia: Did you know that Justice Clarence Thomas once spent nearly 10 minutes asking questions during a single session of oral argument? It’s true–in NASA v. FLRA, argued in 1999. The case concerned the role of agency inspector generals. Thomas, of course, headed a federal agency, and so knows how […]
Almost a year ago, I wrote a post challenging the idea that the Chief Justice does not assign important opinions to Justice Sotomayor. This week, my analysis is similar — but this time it involves Justice Thomas. As I explained last year, here is an important principle when it comes to understanding the Supreme Court: […]
The D.C. Circuit is a predictable court — until it’s not. I’ve been blogging about the D.C. Circuit for over a year and I thought I had the pattern down. The Court issues opinions on Tuesdays and Fridays–meaning no opinions the rest of the week. Thus, I felt safe taking my children–who, for reasons I […]
The D.C. Circuit issued an important decision today: it held that the removal protections for the Director of the Consumer Financial Protection Bureau violate Article II of the Constitution. As a remedy, the D.C. Circuit essentially excised the Director’s “for cause” removal protection from the U.S. Code. This means that if the President is unhappy […]
(This was a very quiet week at the D.C. Circuit. No opinions. So feel free to skip this post. If you want something else to spend five minutes on, consider this–just for the experience. Warning: that link may haunt your dreams.) This is not a novel observation, but even so, here goes: Researchers should publish […]
Last month, Notice & Comment hosted a two-week symposium on Seminole Rock (or Auer) deference. The complete symposium is now available on SSRN. Here is the link. And here is the Table of Contents: Introduction by Aaron Nielson The Lost History of Seminole Rock by Sanne H. Knudsen & Amy J. Wildermuth Henry Hart’s Brief, […]
The D.C. Circuit, sitting en banc, devoted over seven hours — seven hours! — of oral argument to a single matter. And the full court opted to hear the case en banc in the first instance, without an ordinary three-judge panel ever having a shot at it. Obviously, the media paid attention. With so much […]
The American Bar Association Section of Administrative Law and Regulatory Practice hosts an annual conference in Washington, D.C. If you care about “admin law” — and if you don’t, you really should — it is a great event. I attended for the first time last year and enjoyed the interesting mix of lawyers and scholars. […]
The big(-ish) news this week is that Judge Pillard will participate in the en banc “Power Plant Rule” argument next Tuesday. (Chief Judge Garland still is recused.) We don’t know why she was recused before or why she is not recused now. But that is par for the course; often the reasons for recusals are […]
Our symposium on Seminole Rock deference has now come to an end. I will take a few moments, however, to thank all of the participants. By my count, 30 different contributors posted as part of this symposium. We are fortunate that so many folks, with so many different perspectives, were willing to take the time […]