The assault on Chevron has not yet been resolved, but it is next to impossible to believe that the sensible Justices of the Court will go any further than to reaffirm that deciding questions of the scope of agency authority is exclusively for judicial resolution (though perhaps with Skidmore-like attention to the views of the […]
In Absolute Healthcare v. NLRB, the D.C. Circuit granted a petition to review (in part) an NLRB order finding that an employer committed unfair labor practices and ordering various remedial measures. But to describe the decision in this way is to obscure a rather unusual feature of the case. Here is how Judge Walker, in a […]
The D.C. Circuit published one administrative-law opinion last week: Novartis Pharmaceuticals Corp. v. Johnson. Section 340B of the Public Health Service Act requires drug manufacturers to sell certain drugs to certain healthcare providers at a steep discount. Many of these providers contract with pharmacies to help distribute the discounted drugs to their patients. But those […]
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 […]