In this post, I will articulate my conception of legitimacy as distinct from legality, and explain what lawyers and policymakers have to gain by understanding the difference. I have to beg readers’ forgiveness for being rather philosophical and long-winded here, and I promise to move on to more exciting and concrete action in subsequent posts. […]
Since I’ve received a number of questions recently about the timing of King v. Burwell and its aftermath, I thought it was worth addressing them all in one place. When will we get a decision? The Court is likely to release its opinion in the last week of June. A decision could come sooner, but […]
Many thanks to Peter Conti-Brown for his kind words about my book and his invitation to guest-blog here. I’ve been greatly enjoying Notice & Comment since its launch, and it’s an honor to be in the company of so many distinguished legal scholars. As a way of launching my discussion, let me offer a very […]
It’s my pleasure to introduce guest blogger Philip Wallach, a Fellow in Governance Studies at the Brookings Institution. Philip is the rather rare political scientist who doesn’t take an extreme view of law, neither as politics by another means nor as a black box of binding but indiscernible rules. He is the author of an […]
In Validus Reinsurance Ltd. v. United States, the D.C. Circuit addressed the potential conflict between Chevron and the presumption against the extraterritorial application of statutes. In that case, a foreign company, Validus, reinsured other insurance companies’ policies. Validus then sought protection for its own reinsurance risks, and it purchased reinsurance from other foreign companies. The D.C. […]
Sara Rosenbaum and Tim Westmoreland have an interesting new piece out at the New England Journal of Medicine on the Patient CARE Act, a Republican proposal to transform Medicaid into a block grant program (among other things). Not only is the Patient CARE Act bad policy, they argue, but the move to block granting could […]
Agency use of guidance documents (defined here as agency rules issued as either interpretive rules or policy statements) has been hot topic in administrative law lately. The Supreme Court recently rejected a D.C. Circuit doctrine that was intended at least in part to deter agency abuse of guidance. Several justices have expressed an interest in reducing […]
In my last post, I observed that there was a dilemma posed by the current system of producing and moving medicines and vaccines from the developed, wealthy countries of North America, Europe and the Pacific Rim to low-resource countries in Asia, Africa and South America. The public health urgency of distributing medicines and vaccines often […]
I might be accused of picking at low-hanging fruit, but I’d nonetheless like to devote another blog post to more IRS regulations that expand and contradict Section 36B. My prior blog posts, which I’ve adapted into an essay upcoming in Bloomberg BNA, discuss regulations that improperly extend ACA premium tax credits to persons in the […]
As Andy Hessick noted a few posts back, the Supreme Court recently granted cert in an important energy law case. FERC v. Electric Power Supply Association deals with FERC’s attempt to create a demand response program at the wholesale level. This is an issue that I’ve blogged about before; other scholars have written some great […]
Last week, Will Baude published a column in the New York Times, available here, arguing that the Court should postpone deciding Zivotofsky v. Kerry, a case already argued this term, until it decidesSpokeo v. Robins, which is slated for next term. The two cases seem quite different. Zivotofsky is about Congress’s and the President’s power […]
Administrative agencies regularly interpret statutes in the course of rulemaking, but there is little data about how they go about interpreting those statutes. Do the rulemakers rely on canons of interpretation? Do they look at legislative history? These questions are important for many reasons, one of which is whether agencies act as faithful agents of […]
Before it collapsed, Lehman Brothers engaged in various tax-motivated transactions, including ones to earn foreign tax credits. Last week, a federal judge addressed the merits of one of those controversies, holding against the defunct bank. The court tucked in a footnote a potentially interesting twist on agency deference. It noted that a so-called IRS Advisory […]
I’ve been toying with an idea that might allow the Obama administration, in the event that it loses in King v. Burwell, to keep subsidies flowing to residents in some of the 34 states that declined to create an exchange. What if HHS declared that any state that performs substantial, ongoing, and essential exchange functions […]
Even if you are an armchair observer of the federal courts, or a nuclear policy nerd, it’s unlikely that you caught wind of a mid-April decision out of the Court of Federal Claims in the case of System Fuels, Inc. v. United States (decided Apr. 15, 2015). In fact, even if you had, you’d be […]