In an open letter, a coalition of voting rights advocates has accused the Obama administration of breaking the law by failing to use the federal exchanges—those run through HealthCare.gov—to help people register to vote. I don’t think that’s right, but the letter nonetheless raises an important question: Even if it’s not legally mandated, why shouldn’t […]
Observant readers can probably tell that I think the D.C. Circuit is an important court. A court with jurisdiction to review what the administrative state is up to inevitably is going to be important. Yet depressingly few Americans even know there is such a thing as a “D.C. Circuit,” much less who sits on it. […]
If you’re interested in administrative law and regulatory practice (which I assume you are if you’re reading this blog) and you’re in DC (or even if you’re not), I hope you’re planning to attend the Annual Administrative Law Conference hosted by the American Bar Association’s Section of Administrative Law and Regulatory Practice. The program takes […]
“Each of the federal circuit courts of appeals has its own unique character,” John G. Roberts, Jr., once observed, shortly before he became the nation’s Chief Justice. “For example, I am sure you are familiar with the tradition in the Court of Appeals for the Fourth Circuit, where at the end of oral argument the […]
On Wednesday, I spoke on a panel at the Food & Drug Law Institute’s FDA Regulation of Tobacco Products Conference. I provided an update on two pending lawsuits involving industry challenges to FDA’s tobacco-related actions. (My slides, as well as those of the other presenters, can be downloaded from the conference link.) The first case, […]
House and Senate committees have been doing a fair bit of work behind the scenes on regulatory reform legislation lately. This post focuses on the legislation that appears to have the greatest odds of being enacted into law and outlines a possible path forward. On October 7, 2015, the Senate Homeland Security & Governmental Affairs […]
On Wednesday, I spoke on a panel at the Food & Drug Law Institute’s FDA Regulation of Tobacco Products Conference. I provided an update on two pending lawsuits involving industry challenges to FDA’s tobacco-related actions. (My slides, as well as those of the other presenters, can be downloaded from the conference link.). The first case, […]
Before entering the academy, I had an idea: Why not apply administrative law principles to certiorari? Whether to grant cert is a discretionary decision; administrative law is concerned, perhaps above all else, with how to manage the dangers and benefits of discretion; why not then apply the lessons from administrative law to certiorari? After a […]
In a prior post, “The IRS’s Mercenaries,” I explained how the IRS has taken extraordinary steps to battle Microsoft over the tax consequences of some of the company’s international transactions. In short, the IRS hired a private law firm to perform some audit and litigation related functions, and a federal district court is currently examining […]
Once again, there was not a lot of action at the D.C. Circuit this week, at least in terms of opinions, as no new ones were released. Like the Supreme Court, the D.C. Circuit (generally) stops hearing cases before the summer. Then in the fall it starts again. So soon, the court will start issuing […]
On July 29, 2015, the Department of Homeland Security (“DHS”) proposed a rule to amend its regulations under the Freedom of Information Act (“FOIA”). The DHS states that it would like “to update and streamline the language of several procedural provisions, and to incorporate changes brought about by the amendments to the FOIA under the […]
A few weeks ago, in United State v. Matchett, the Eleventh Circuit rejected a void for vagueness challenge to the career offender Sentencing Guideline, U.S.S.G. § 4B1.2(a)(2), which contains language that is identical to statutory language in 18 U.S.C. § 924(e)(2)(B). The U.S. Supreme Court found that statutory language to be unconstitutionally vague at the […]
Judge Frank Easterbrook is an extraordinary jurist. He’s prolific; influential*; and scholarly. He also wields a sharp pen (e.g., “This case pits the twenty-first amendment, which appears in the Constitution, against the ‘dormant commerce clause,’ which does not.”). Even if you disagree with him, he always has interesting things to say. And that includes his […]
On the administrative law professor email listserv, my colleague Peter Shane sparked an intriguing discussion about the impact of the Justice Department’s Office of Legal Counsel (OLC) on administrative law scholarship and the legal academy more generally. With permission, I’m reprinting a (slightly edited) version of his initial email to the listserv: I recently received […]
I have previously written about various IRS regulations that contradict the clear language of tax code Section 36B. I recently re-examined the regulations and was only mildly surprised to find another provision that plainly exceeds the IRS’s rulemaking powers. Here, the IRS has simply discarded the statute’s joint return requirement for a segment of taxpayers […]