For several months in 2022 and 2023, I wrote a series of blog posts called “The Major Questions Doctrine Reading List.” These posts came in the aftermath of several high-profile cases involving the MQD. My hope was that I could spotlight good scholarship and provide a shared language for talking about the MQD. For the […]
The D.C. Circuit did not decide a nondelegation case last week. But while I have you, and the nondelegation doctrine and fee-setting are surely on your mind, I commend to your attention a recent article Professor Erika Lietzan: User Fee Programs. It surveys fee programs across the federal government and touches on the question whether […]
Today’s Ad Law Reading Room entry is “Rethinking the Administrative-Remand Rule,” by Matthew J. Sanders, which is forthcoming in the Stanford Law Review. Here is the abstract: With a few exceptions, the federal courts of appeals have jurisdiction over—and only over—“final decisions” of the district courts. There is a little-known but highly consequential rule, known […]
FCC v. Consumers’ Research (set to be argued on March 26) presents the Supreme Court with its latest chance to revitalize the nondelegation doctrine. The case centers on the multi-billion dollar universal service fund (USF) that, by statute, the FCC funds with fees from interstate telecom carriers to pay for various subsidy programs. The en […]
On January 20, 2025, President Trump’s first act was to end birthright citizenship by executive fiat with the “Protecting the Meaning and Value of American Citizenship” executive order. On March 13, 2025, after four federal courts enjoined the implementation of the executive order, the Trump Administration petitioned the U.S. Supreme Court to allow him to […]
In August 2024, federal district court Judge Amit Mehta ruled that Google violated Section 2 of the Sherman Act, setting the stage for what could be a watershed moment in tech regulation. The court found that Google unlawfully maintained its monopoly through exclusive distribution agreements with browser and device companies, sharing ad revenues in exchange […]
“The procedure of administrative rule making is one of the greatest inventions of modern government.” Summary Section 553(a)(2) of the Administrative Procedure Act exempts “loans, grants, benefits or contracts” from the Act’s rulemaking requirements. Many of the programs administered by the Department of Health and Human Services (DHHS) – such as Medicaid, old age, survivors, […]
How Is Trump 2.0 Reshaping the Administrative State? A webinar sponsored by the Penn Program on Regulation Weds., March 263:00-4:30 p.m. EDTVia Zoom Since assuming office in January, the Trump Administration has taken unprecedented actions involving federal agencies. He has asserted presidential power over the functioning of independent agencies, taken steps to dismantle certain agencies […]
Before the Dellinger v. Bessent case slips too far out of mind, it’s worth recollecting that the district court granted a declaratory judgment against the President of the United States. Is that permitted? The court first quoted the core part of the federal Declaratory Judgment Act (28 U.S.C. § 2201(a)): [I]n a case of actual controversy within […]
Congress will soon be deciding whether to use the Congressional Review Act (CRA) to overturn several EPA waivers that allow California to regulate vehicle emissions. There have been two important developments since I initially posted an explainer on Legal Planet about this issue. First, two lawyers, Michael Buschbacher and Jimmy Conde, posted a lengthy piece […]
The D.C. Circuit was busy last week with emergency motions. In Dellinger v. Bessent, the district court enjoined the removal of Special Counsel Hampton Dellinger. The D.C. Circuit (Henderson, Millett, and Walker, JJ.) stayed the injunction pending appeal. As the panel explained, the stay gave “effect to the removal of appellee from his position as Special […]
Here is the February 2025 Edition of the most-downloaded recent papers (those announced in the last 60 days) from SSRN’s U.S. Administrative Law eJournal, which is edited by Bill Funk. For more on why SSRN and this eJournal are such terrific resources for administrative law scholars and practitioners, check out my first post on the subject here. You can […]
The Duke Law Journal invites papers for its 56th Annual Administrative Law Symposium, to be held in spring 2026 at Duke University School of Law in Durham, North Carolina. Papers can be submitted through Duke Law Journal’s Scholastica portal and will be considered on a rolling basis. We are considering all pieces in the field […]
The often-fuzzy distinction between “rules” and “adjudications” jumped to the foreground recently following the Trump Administration’s submission of several EPA “waivers” of Clean Air Act preemption for state electric-vehicle mandates to lawmakers under the Congressional Review Act (“CRA”). The Biden EPA had elected to not submit these actions for review, claiming in a December 2024 […]
Marin Audubon Society v. FAA is back in the news. Last week, the D.C. Circuit returned to the case for the second time since the panel’s November 2024 judgment. For our prior coverage of the November judgment, which threatened to “upend()” fifty years of law implementing the National Environmental Policy Act (NEPA), see here. In […]