Last week, several business groups including the National Federation of Independent Businesses filed a lawsuit seeking to invalidate one of the Department of Labor’s top priorities: a final rule issued in April that updates the Fair Labor Standards Act’s (FLSA) overtime salary thresholds to ensure that millions more workers are eligible for extra pay if […]
On two occasions, the majority opinion in CFPB v. Community Financial made clear that it was tasked with answering only a “narrow” question concerning the requirements imposed by the Appropriations Clause. Slip Op. at 1, 5. The Court’s answer to that narrow question was relatively straightforward: the Appropriations Clause requires no more than “a law […]
Join the Administrative Conference of the United States (ACUS) on Monday, June 3 (9:30am–3pm ET), for a public forum on international regulatory cooperation. U.S. and international regulators, leading academic scholars, and other experts in the field will explore the current federal framework for international regulatory cooperation, examine global perspectives, and identify remaining barriers to regulatory […]
The D.C. Circuit released six published opinions last week, including the latest challenge to EPA’s Renewable Fuel Standard (RFS) program and an appeal involving the scope of the consultant corollary to FOIA Exemption 5. First, in Sinclair Wyoming Refining Co. v. EPA, the court denied several petitions for review of EPA’s RFS rulemaking for 2020, 2021, […]
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 […]
We had a wonderful two-day ABA Administrative Law Conference in Washington, DC, earlier this month—the first such in-person conference for the ABA Administrative Law Section since before COVID-19. It was so much fun to catch up with so many of you, to listen to you present your current scholarship, to hear about the successes and […]
Today’s Ad Law Reading Room entry is “Ghostwriting Federalism,” by Adam Zimmerman, which was recently published by the Yale Law Journal and posted to SSRN. Here is the abstract: Notwithstanding the Supreme Court’s admonition that federal authorities should not “unduly interfere” with state government, federal agencies frequently write state laws. They draft model state acts. […]
The D.C. Circuit published three opinions last week. United States v. Bannon was the most newsworthy of last week’s cases. Steve Bannon was subpoenaed to testify before Congress. He refused, citing advice of counsel. In 1961, the D.C. Circuit held that there is no “advice of counsel” defense to prosecution for contempt of Congress. In […]
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 […]
Not much of a unifying theme in the past week’s D.C. Circuit decisions. The most significant decision was likely Farhy v. Commissioner of Internal Revenue, No. 23-1179, where the court (Judge Pillard writing) held that the IRS can assess and administratively collect penalties for failure to file information returns regarding ownership of foreign businesses. The […]
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 […]
While all eyes and ears were on the oral arguments before the Supreme Court in Trump v. United States, No. 23-939, the D. C. Circuit’s landmark decision regarding presidential immunity, the court went about its normal business, issuing three opinions on matters less grand but important nonetheless. The Federal Service Labor-Management Relations Statute authorizes aggrieved […]
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 […]
Join us in Washington DC for an exceptional conference exploring the forefront of administrative law and government policymaking during a two-day live event in the heart of our nation’s capital. This year, our program will commence with Thursday sessions at The George Washington University Law School, featuring academic workshops, and will conclude with a networking […]