The Supreme Court’s recent decisions on deference and delegation have attracted enormous attention from judges, policymakers, lawyers, and scholars — and rightly so. But those debates have overshadowed other significant shifts in the courts’ review of administrative actions. Among them is “hard look review”—the courts’ review of an agency’s analysis and explanations, under the Administrative […]
The Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo will fundamentally change the courts’ approach to interpreting regulatory statutes and reviewing the actions of administrative agencies. The Court renounced Chevron deference: under the APA, “courts must exercise independent judgment in determining the meaning of statutory provisions.” “In exercising such judgment,” the Court added, “courts may—as they have […]
“When was the last time you heard of any government or ex-government official being described as dishonorable?” The late Judge Laurence Silberman posed that question fifteen years ago, in a speech titled, simply, “On Honor.” Before an audience of law students, he reflected on the decline of “honor” as a guiding principle in our understanding […]
(This is my “Chair’s Comment” in the newly published Fall 2023 issue of Administrative & Regulatory Law News, from the ABA’s Administrative Law Section. If you’re not already a member of the section, I hope you’ll join us.) At Stanford’s Hoover Institution, the best conference room is a tribute to the late Secretary of State […]
When the Supreme Court met last week to reconsider judicial deference to agencies’ legal interpretations, the justices grappled with one of the most unsettling qualities of modern government: sweeping policy changes from one administration to the next, which create immense regulatory uncertainty. Chevron deference “ushers in shocks to the system every four or eight years when […]
OIRA is, of course, very much in the news lately. What great timing, because the American Enterprise Institute will host a conference this week on the last few years’ developments—the Trump Administration’s approach to regulatory budgeting, and the Biden Administration’s newer and broader reforms. It will be the afternoon of Wednesday, May 17. Full details, […]
Having closely followed the Consumer Financial Protection Bureau since its inception, I’m struck by the arguments that the CFPB is now making to the Supreme Court. After all, they squarely contradict a decade’s worth of the CFPB’s own statements. I’ve detailed that on Notice & Comment and elsewhere, but here is one more example, involving […]
In one of the Consumer Financial Protection Bureau’s first strategic plans, the then-new agency highlighted Congress’s decision to vest it with a completely independent source of revenue: “providing the CFPB with funding outside of the congressional appropriations process,” Congress had “ensure[d] full independence” for the agency. The agency’s declaration of independence from future congressional appropriations […]
The news of Judge Laurence Silberman’s passing on October 2 spurred a wave of remembrances from colleagues, admirers, former proteges, Supreme Court justices, and many more. Some of my AEI colleagues contributed writings of their own: Robert Doar, Yuval Levin, and John Yoo. His contributions to the law—particularly in respecting and reinforcing the Constitution’s separation of powers—were immense, as many of his […]
What have we learned so far about regulatory budgets, and what might the next iteration of Executive Order 13771 look like? Although E.O. 13771 is not currently on the books, future presidential administrations may decide to formulate their own versions of regulatory budgeting under OIRA’s management and oversight. So it’s good to learn from the […]
Financial regulators are reshaping themselves into tools of climate policy, and this transformation presents myriad problems—some legal, some practical. And the controversy surrounding recent nomination to the Federal Reserve remind us of yet another problem—one that seems to be catching some observers by surprise, but which is all too familiar to those of us who […]
The Supreme Court’s latest abortion cases, being argued this morning, aren’t actually about abortion. They’re about administration, and the role of courts in it. At least, the point I try to make this morning in a short essay elsewhere, which may be of interest to Notice & Comment‘s readers. It’s natural for Court-watchers to group […]
*This is the seventh post in a series on Andrew Rudalevige’s new book, By Executive Order: Bureaucratic Management and the Limits of Presidential Power. For other posts in the series, click here. Any book on the constitutional executive will contain more than a little Alexander Hamilton. It’s ironic: Hamilton’s famous argument for “energy in the executive,” so […]
This year seems a good time to take stock of “presidential administration,” both in theory and in practice. It is, after all, a year of presidential transition, illustrating the ever-growing changes in law and policy that follow every succession of one presidency after the last. It’s also the twentieth anniversary of Elena Kagan’s landmark article. […]
After Judge Stephen F. Williams died last year, during the early months of the Covid-19 pandemic, the Yale Journal on Regulation published many tributes from his clerks and other admirers. They appeared here at N&C (see here, here, and here); later, the Journal published a symposium issue (Vol. 38, No. 3) with contributions from Judge […]