Welcome back to another edition of Fifth Circuit Review—Reviewed! I have several noteworthy cases to report on, including the Fifth Circuit’s first full-blown application of the five-part test from Kisor v. Wilkie, 139 S. Ct. 2400 (2019). Let’s dig in. Auer Deference Alive and Well in Fifth Circuit Post-Kisor Johnson v. BOKF National Association, No. […]
Happy to be back with another Fifth Circuit Review—Reviewed! Courts are often asked to decide whether an agency regulation is based on a permissible construction of the statute the agency administers. In those cases, the court must, of course, interpret the statute to decide whether the regulation exceeds the agency’s authority. Other times, though, courts […]
Welcome to another installment of Fifth Circuit Review – Reviewed. Earlier this month, the Fifth Circuit shocked the world. My former (and totally amazing) boss, Evan A. Young, summed up the historic moment: In need of guidance, #AppellateTwitter looked to their fearless leader, Raffi “@RMFifthCircuit” Melkonian, who soon delivered the official confirmation: Not everyone was […]
This post is about the Fifth Circuit’s recent-ish decision in American Stewards of Liberty v. Department of Interior, 960 F.3d 223 (May 29, 2020) (Stewart, Dennis, Haynes) (per curiam). I’ll have more Fifth Circuit – Reviewed content coming soon, but thought this case summary read well as a standalone post. During the relatively short time I’ve […]
Two things I love: administrative law and scary movies. No matter how busy I am, I try to watch a couple of really good scary movies each year around Halloween. I haven’t watched any yet this year, though, so if you have recommendations, please let me know. Anyway, while preparing this Fifth Circuit Review–Reviewed, I […]
UPDATE: My original post, which appears unchanged below, confidently declares that Judge Smith’s invocation of the slogan “stare decisis is for suckers” in his CFPB v. All Am. Check Cashing dissent shows that Judge Smith listens to Strict Scrutiny. Since then, I received this helpful note from Professor Jonathan H. Adler, explaining why he doubts […]
It’s been awhile since my last Fifth Circuit Review–Reviewed, and there’s a lot of adlaw news from Fifth Circuit to cover. Among other things, this post discusses the Court’s divided opinion in Texas v. United States; the post-Kisor viability of deference to the commentary to the Sentencing Guidelines; and the Fifth Circuit’s decision to grant […]
Cases decided in Kisor‘s wake are already applying the new deference framework in the Chevron context. See, e.g., Braeburn Inc. v. FDA, 389 F. Supp. 3d 1 (D.D.C. 2019); E. Bay Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922, 939 (N.D. Cal. 2019), order reinstated, 391 F. Supp. 3d 974 (N.D. Cal. 2019). I wish they’d knock it off, though. As […]
After a longer-than-I-would-have-liked break, I’m back with another installment of Fifth Circuit Review—Reviewed. This post will be longer than usual because so much has happened since my last update. I think I’ll start where Aaron Nielson’s most recent D.C. Circuit Review—Reviewed left off. Aaron discussed Judge Tatel’s opinion in Save Jobs USA v. DHS, No. 16-5287 (D.C. Cir. […]