On August 26, Special Counsel Jack Smith filed the highly anticipated opening brief in the DOJ’s appeal to resurrect the high-profile classified documents case against former President Donald Trump. This case, once considered the most straightforward of the prosecutions of Trump, was unexpectedly derailed last month when Judge Aileen Cannon dismissed the indictment on constitutional grounds, holding […]

The Association of American Law Schools (AALS) Section on Administrative Law is pleased to announce the “New Voices in Administrative Law” program for the 2025 AALS Annual Meeting, which will be held in January in San Francisco, CA. The New Voices program gives junior administrative law scholars an opportunity to receive useful feedback on their […]

Delegation of regulatory authority from Congress to federal agencies is a foundational principle of modern government. Congress often tasks agencies to address complex problems, and lawmakers combine broad and specific terms to identify the scope of an agency’s authority in effectuating the purpose of a statute. Even when Congress is most precise, the terms in […]

In Loper Bright v. Raimondo, 144 S. Ct. 2244 (2024), the Court overrode Chevron, relying partly on the history of judicial nondeference. That is, before Chevron, courts did not offer “deference to agency resolutions of questions of law.” Id. at 2258. Loper Bright concluded that this history of nondeference helped establish that Chevron led courts […]

The Supreme Court’s 1971 decision in Citizens to Preserve Overton Park, Inc. v. Volpe is found in every administrative law case book because of its centrality to basic standards for judicial review of agency actions, including those of the Federal Election Commission (FEC). Yet Overton Park rarely arises in lower court opinions. That is not surprising. The case is […]

This is the third of three posts assessing Judge Aileen Cannon’s dismissal of an indictment against Donald Trump and his two co-conspirators because Jack Smith was unconstitutionally appointed as a special counsel.  This three-part series has focused on the appropriateness of the Judge’s wholesale invalidation of the Special Counsel’s action. As noted in my initial […]

This is the second of three posts assessing Judge Aileen Cannon’s dismissal of an indictment against Donald Trump and two co-conspirators upon finding the Attorney General’s appointment of Jack Smith violated the Appointments Clause.  This three-part series assumes that Judge Cannon correctly decided the constitutional question and, instead, assesses the appropriateness of the Judge’s wholesale […]

“[T]he aspiration to effective individual remediation for every constitutional violation represents an important remedial principle, but not an unqualified command.”  Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731, 1789 (1991) Judge Aileen Cannon recently dismissed an indictment against Donald Trump and two co-conspirators upon […]

Federal Trade Commission Chairwoman Lina Khan continues to lose legal battles. Last month, a federal court in New York threw out an FTC lawsuit for the second time, doing so “with prejudice,” which means the FTC is barred from bringing the claim back to court. This loss is the latest in a long string of FTC defeats, […]

Spectrum is the lifeblood of the commercial wireless industry.  Today, spectrum is incredibly scarce as most of the available spectrum is already allocated for assorted uses.  With spectrum in short supply yet in high demand by telecommunications operators, federal policy must focus on identifying bands that can be used more efficiently; this is especially the case as […]

In mid-July, a divided Ninth Circuit panel rendered the Federal Vacancies Reform Act (FVRA) a “near dead letter,” to quote from Judge Morgan Christen’s dissent. Before we get to the majority’s decision, let’s start with the backstory. The Constitution, of course, requires high-level officers to be appointed by the President with the “advice and consent” […]