For about the last 30 years, the tax community has hotly debated the propriety of increased judicial lawmaking in the tax shelter area. District and appellate courts routinely decide federal tax cases without interpreting or even citing a single income tax statute, and they sometimes openly dismiss legislative enactments as meaningless “details.” Only rarely will […]

[CJW Note: I mentioned this terrific study on Auer deference, which is forthcoming in the Ohio State Law Journal, during my teleforum on Mortgage Bankers and then again on the blog here. The author, Cynthia Barmore, kindly agreed to do a guest post on the study, which I’ve included below as part of the Administrative […]

I’ve previously blogged about the Administrative Conference of the United States (ACUS) here and here, and I’m a big fan of ACUS’s role in bridging the gap between the theory and practice of administrative law and improving administrative governance in the United States. ACUS has just announced a request for proposals to serve as a consultant on […]

Last week my co-blogger Jeff Pojanowski and I participated in a Federalist Society teleforum (moderated by Adam White) on the Supreme Court’s recent decision in Perez v. Mortgage Bankers Association. In Mortgage Bankers, the Court held in a unanimous decision that a federal agency is not required to use notice-and-comment rulemaking to revise a prior interpretation […]

In a NYTimes op-ed, Professor Will Baude argues that the Obama Administration can easily avoid any adverse decision in King v. Burwell by limiting the case to the particular persons in front of it. That is, the administration won’t collect penalties from the challengers but can continue to provide tax credits for policies purchased on […]

The always-interesting Will Baude has a provocative piece on King v. Burwell at the New York Times. As he sees it, the Obama administration has an ace up its sleeve when it comes to avoiding the fallout of an adverse decision. [L]uckily the Constitution supplies a contingency plan, even if the administration doesn’t know it […]

Welcome back. In my previous post, I struck up a conversation with—well, with an italicized version of myself. It’s a conversation about the EPA’s Clean Power Plan, which is a really Big Deal. Yeah, you said that last time, but I’m still not clear why it’s such a Big Deal. You left off by saying […]

In a characteristically provocative opinion, Justice Scalia, concurring in Perez v. Mortgage Bankers, expressed skepticism over Chevron deference. He suggests that Chevron does not comport with the APA’s directive that “the reviewing court” decide questions of law and that Chevron goes beyond the historic level of deference accorded agency interpretations. Putting aside issues of stare […]

Eric Lindblom, a Senior Scholar at Georgetown Law School’s O’Neill Institute for National & Global Health Law, has published an important new article entitled Effectively Regulating E-Cigarettes and Their Advertising – and the First Amendment in the Food & Drug Law Journal. (Full disclosure: Lindblom was my supervisor when I worked at the FDA Center […]

Step aside, Affordable Care Act. If you aren’t already, get used to hearing about the Clean Power Plan. Perhaps the most ambitious regulatory effort ever put forward by the EPA, the Plan represents the largest, farthest-reaching component of the Obama Administration’s response to greenhouse gas (GHG) emissions and climate change. So far, we’ve only seen […]

This is the second in a three-part series on Fed governance. The first is here. In the first post in this series, I discussed some of the problems I see in the governance structure of the Federal Reserve Banks. At the Brookings event where I laid out some of these arguments, my respondent was former […]

This is the first of three posts on recent developments in the governance of the Fed.  My apologies to any regular readers—who might consist only of my wife and mother—for the long break from blogging. To compensate, I’m going to write a three-post series on some recent discussions of the Fed and its governance. Today, […]

During oral arguments in King v. Burwell, Justice Alito referred to a few issues that have been covered on this blog. For now, I’d like to focus on his question regarding a potential stay of any government-adverse decision. Regarding the stay, Justice Alito asked Solicitor General Verrilli whether a holding for the petitioner would wreak […]