On August 2, 2024, in Texas Medical Association, et al. v. United States Dept. of Health and Human Services, et al. (“Texas Medical”), the Fifth Circuit ruled that the Final Rule promulgated in 2022 by three separate federal agencies under different statutes exceeded statutory authority under the No Surprises Act (“NSA” or “the Act”). In rendering its […]
Welcome to your monthly recap of administrative law from the Fifth Circuit! By my count, the Court issued ten published opinions in administrative law cases last month. I’ll focus on three of those cases here. For the rest, I’ll limit myself to the key takeaways. Private Nondelegation in the Regulation of Horseracing Up first we […]
With the Supreme Court considering SEC v. Jarkesy last Term, much of the administrative law field debated whether federal agencies should be able to adjudicate disputes in house, or whether some disputes must be tried by a jury in an Article III federal court. The Supreme Court ultimately held that the U.S. Constitution provides a […]
In the summer of 2016, the ABA Section of Administrative Law & Regulatory Practice prepared and approved a report with recommendations to the next President-Elect, titled “Improving the Administrative Process”. The recommendations of that 2016 report remain of interest, and the report remains available online, here, as well as at 69 Administrative Law Review 205-224 (Winter […]
As August rolls on, the D.C. Circuit released five published opinions in administrative law cases last week. One vacated a do-over by the Federal Energy Regulatory Commission, two addressed standing, one addressed mootness, and one applied the Freedom of Information Act. FERC In City of Port Isabel v. FERC, the court vacated FERC’s reauthorization of two […]
Notice & Comment readers have, by now, gotten a range of views on the effect of Loper Bright Enterprises v. Raimondo on administrative agencies’ authority. One thing many agree on, though, is that only time will tell the decision’s true impact. Our organization, Governing for Impact, has released an issue brief offering guidance to policymakers on how to understand […]
A moralist, economist, and lawyer walk into a bar. The economist claims they should lead antitrust inquiries. After all, antitrust is about markets and who knows more about markets than economists? The lawyer scoffs. Economists may know about supply and demand, but they don’t know the first thing about how to design regulations to achieve […]
“America’s Court” (as I call it) strikes again: Welcome back to Sixth Circuit Reviewed! This month, no published administrative law cases from the Court. But don’t fret. Fireworks this round came by way of a motions panel, which stayed the Federal Communication Commission’s net neutrality rules. Quick (overly simplified) background: The Communications Act of 1934 […]
With the demise of Chevron deference, another significant deference doctrine warrants renewed examination: the judicial deference accorded an agency’s findings of facts during an administrative hearing. Courts have deferred to an agency’s decision when it is supported by substantial evidence by giving one word used twice in the Administrative Procedure Act (“APA”) two opposite meanings; one requires deference in the extreme, […]
During the past Term, the Supreme Court issued a series of landmark decisions upending longstanding interpretations of administrative law. These decisions have important implications not only in the context of those particular cases, but also in the larger framework of how judicial review of agency action is developing. The Four Decisions In one case, SEC v. […]
The D.C. Circuit published eight opinions this week, including two on the Foreign Sovereign Immunities Act (here and here), one on standing to appeal a denial of a motion for class certification, another on the constitutionality of the Digital Millennium Copyright Act (spoiler alert: the facial challenges failed), and one on what I trust is […]
Today’s Ad Law Reading Room entry is “Nondelegation, Original Meaning, and Early Federal Taxation: A Dialogue With My Critics,” by Nicholas R. Parrillo, which was recently published by the Drake Law Review and posted to SSRN. (Note that the SSRN version includes an online-only appendix containing further dialogue. Parrillo also blogged about aspects of the […]
Last week, the en banc Fifth Circuit, by vote of 9 to 7, issued an opinion holding that a provision of the Telecommunications Act of 1996 violates the nondelegation doctrine, creating a circuit split. The opinion spends four pages discussing my article A Critical Assessment of the Originalist Case Against Administrative Regulatory Power, 130 Yale L.J. 1288 (2021), and Philip Hamburger’s […]
Kristin Hickman, Dick Pierce, and I just finished the 2024 summer update to our federal administrative law casebook. As part of that process, we spent a fair amount of time discussing and structuring how we are going to teach statutory interpretation in our administrative law courses–at least for now—after Loper Bright eliminated Chevron deference. We […]
The Michigan Law Review is soliciting proposals for its annual book review for pieces “related to the recent (and ongoing) sea changes in administrative law.” From the request for proposal, which you can find here: This is a unique and expedited request—the call for Book Review submissions has closed for the year. However, the Editors […]