Chevron deference is a central feature of administrative law. But criticism of the doctrine has grown recently. One prominent example comes from Justice Thomas’s concurrence last year in Michigan v. EPA, which argued that Chevron deference is inconsistent with the Constitution. Although other justices have said that agencies have grown too powerful, none of those […]
The constitutionality of in-house adjudications by the Securities and Exchange Commission has beenin the news of late, and the U.S. Chamber of Commerce has made a number of recommendations to improve SEC adjudications, including that individuals and organizations be able to remove the SEC in-house adjudication to federal court. David Zaring has a great new […]
When I first came across the name Merrick Garland it was not in the context of his role as a judge on the D.C. Circuit. Rather, the Merrick Garland I came across while researching my student Note was the author of Deregulation and Judicial Review, 98 Harv. L. Rev. 505 (1985). Published when Garland was […]
On one hand, this was a quiet week in the D.C. Circuit; there were just two opinions, neither of which is that significant (though one is noteworthy for jurisdiction hawks).* On the other hand, President Obama nominated Chief Judge Garland to serve on the Supreme Court. So on net, it’s fair to say that this […]
Last week, the Federal Communications Commission announced that it would soon release an NPRM on consumer privacy. According to the Commission’s “fact sheet,” the Notice will propose a number of requirements on broadband Internet Service Providers, including an obligation not to share customer information with non-affiliated services without first obtaining the customer’s express consent. I […]
A couple of months back, I offered the following rule of thumb: “If you want to understand an appellate judge, don’t spend too much time on majority opinions,” but instead “look to his or her separate writings.” It is in those opinions—opinions a judge doesn’t have to write—that one best observes a judge trying to […]
The challenges to the denial of the Keystone XL pipeline simultaneously in both U.S. Federal Court and through the North American Free Trade Agreement’s (NAFTA) investment chapter raise issues regarding how challenges to U.S. regulatory actions might be handled in international arbitration and the future of new trade agreements. The Administrative Law Section Energy Committee, […]
Procedural fairness is not a policy priority in immigration law. Yes, the Supreme Court will hear oral argument soon in Texas v. United States, a case that raises questions about whether the Department of Homeland Security used appropriate procedures in formulating a prosecutorial discretion plan. In that case, some states are challenging the policy, arguing […]
I remember well the indignation I felt when I first learned about unpublished decisions. The idea that an appellate court in a common-law system can issue a decision that “carries no precedential force“—an opinion good for one case only—struck me as scandalous. The rule of law, I felt, depended on precedential effect. But then I […]
Earlier this week my co-blogger Michael Kagan had a great post on the Federal Government’s opening brief in United States v. Texas—the Supreme Court case regarding the Obama Administration’s executive actions on immigration that will be argued in April. I wanted to highlight one of the amicus briefs in support of the United States by […]
Regulatory reform legislation has been a lively topic, and is likely to remain so. Next Tuesday, a panel featuring four senior House and Senate professional staff members will address “Congressional Interest in Regulatory Reform” during the 12th Annual Administrative Law Institute in Washington, D.C. And next Wednesday, the Hoover Institute and the ABA Section of Administrative […]
Next week I will be presenting my Legislating in the Shadows project as part of a research roundtableat George Mason’s new Center for the Study of the Administrative State, which is directed by Neomi Rao. To mark the occasion, I thought I’d highlight Professor Rao’s terrific new article Administrative Collusion: How Delegation Diminishes the Collective […]
It’s often said that “history doesn’t repeat itself, but it does rhyme.” And this certainly is true of the history of administrative law: many of the issues we debate today, on the structure of agencies, the procedures that agencies should undertake, and the judicial review that agencies should take, echo strongly the debates of past […]
Last week the Obama Administration filed its opening brief in United States v. Texas, the pending case at the Supreme Court challenging President Obama’s immigration deferred action programs, known as DACA and DAPA. We haven’t seen Texas’ brief yet, but here are some initial reactions: Justice Scalia’s Mixed Legacy for Deferred Action Justice Scalia’s death […]
On March 30th, the Supreme Court will hear oral argument in United States Army Corps of Engineers v. Hawkes Co., Inc. The question presented concerns “final agency action”: Is the Army Corps’ determination that the Clean Water Act applies to waters on private land “final agency action” reviewable under the Administrative Procedure Act? According to […]