Today, the Ad Law Reading Room generously delivers two entries. The first entry is “Does the Law Ever Run Out?,” by Charles F. Capps. The second is “Pragmatics and Textualism,” by Lawrence B. Solum. Here is Capps’ abstract: Although laypeople commonly believe that a judge’s job is to decide every case as the law requires, […]
This is the third of three posts assessing Judge Aileen Cannon’s dismissal of an indictment against Donald Trump and his two co-conspirators because Jack Smith was unconstitutionally appointed as a special counsel. This three-part series has focused on the appropriateness of the Judge’s wholesale invalidation of the Special Counsel’s action. As noted in my initial […]
This is the second of three posts assessing Judge Aileen Cannon’s dismissal of an indictment against Donald Trump and two co-conspirators upon finding the Attorney General’s appointment of Jack Smith violated the Appointments Clause. This three-part series assumes that Judge Cannon correctly decided the constitutional question and, instead, assesses the appropriateness of the Judge’s wholesale […]
The D.C. Circuit’s internal August 15 deadline for circulating opinions has come and gone, and the pace of opinions has started to slow. The court issued six opinions last week, only four of which involve administrative law. And it was a mixed bag for the agencies, as the court vacated multiple agency actions and regulations. […]
“[T]he aspiration to effective individual remediation for every constitutional violation represents an important remedial principle, but not an unqualified command.” Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731, 1789 (1991) Judge Aileen Cannon recently dismissed an indictment against Donald Trump and two co-conspirators upon […]
It’s been an exciting and productive summer here at the Administrative Conference of the United States (ACUS). Read on to learn more about the Conference’s recent activities, including the launch of four new research projects, the adoption of four new recommendations, and our recently concluded public forum, which brought together academics and practitioners from across […]
Federal Trade Commission Chairwoman Lina Khan continues to lose legal battles. Last month, a federal court in New York threw out an FTC lawsuit for the second time, doing so “with prejudice,” which means the FTC is barred from bringing the claim back to court. This loss is the latest in a long string of FTC defeats, […]
Spectrum is the lifeblood of the commercial wireless industry. Today, spectrum is incredibly scarce as most of the available spectrum is already allocated for assorted uses. With spectrum in short supply yet in high demand by telecommunications operators, federal policy must focus on identifying bands that can be used more efficiently; this is especially the case as […]
In mid-July, a divided Ninth Circuit panel rendered the Federal Vacancies Reform Act (FVRA) a “near dead letter,” to quote from Judge Morgan Christen’s dissent. Before we get to the majority’s decision, let’s start with the backstory. The Constitution, of course, requires high-level officers to be appointed by the President with the “advice and consent” […]
On August 2, 2024, in Texas Medical Association, et al. v. United States Dept. of Health and Human Services, et al. (“Texas Medical”), the Fifth Circuit ruled that the Final Rule promulgated in 2022 by three separate federal agencies under different statutes exceeded statutory authority under the No Surprises Act (“NSA” or “the Act”). In rendering its […]
Welcome to your monthly recap of administrative law from the Fifth Circuit! By my count, the Court issued ten published opinions in administrative law cases last month. I’ll focus on three of those cases here. For the rest, I’ll limit myself to the key takeaways. Private Nondelegation in the Regulation of Horseracing Up first we […]
With the Supreme Court considering SEC v. Jarkesy last Term, much of the administrative law field debated whether federal agencies should be able to adjudicate disputes in house, or whether some disputes must be tried by a jury in an Article III federal court. The Supreme Court ultimately held that the U.S. Constitution provides a […]
In the summer of 2016, the ABA Section of Administrative Law & Regulatory Practice prepared and approved a report with recommendations to the next President-Elect, titled “Improving the Administrative Process”. The recommendations of that 2016 report remain of interest, and the report remains available online, here, as well as at 69 Administrative Law Review 205-224 (Winter […]
As August rolls on, the D.C. Circuit released five published opinions in administrative law cases last week. One vacated a do-over by the Federal Energy Regulatory Commission, two addressed standing, one addressed mootness, and one applied the Freedom of Information Act. FERC In City of Port Isabel v. FERC, the court vacated FERC’s reauthorization of two […]
Notice & Comment readers have, by now, gotten a range of views on the effect of Loper Bright Enterprises v. Raimondo on administrative agencies’ authority. One thing many agree on, though, is that only time will tell the decision’s true impact. Our organization, Governing for Impact, has released an issue brief offering guidance to policymakers on how to understand […]