Chevron is dead, however deference may very well be alive. The majority in Loper Bright Enterprises v. Raimondo articulated no intelligible principle of deference other than tacit acknowledgement of Skidmore deference and potentially laying the path for de novo review. Nonetheless, some scholars have acknowledged that lower courts may function in fundamentally similar ways when […]

From the website of the Administrative Conference of the United States: The Administrative Conference of the United States (ACUS) is pleased to announce a public forum, Recent Administrative Law Developments in the Supreme Court: What’s Next for Agencies? Across four virtual panels beginning next Tuesday, July 30, ACUS members and researchers will discuss the significance of recent Supreme Court […]

The Supreme Court’s recent decision in SEC v. Jarkesy seems destined to upend much federal regulatory enforcement.  A further potential consequence may be coming for state enforcement.  Whether state regulatory programs are vulnerable to a Jarkesy limitation depends on whether Jarkesy depends solely on the Seventh Amendment, or is a collaboration between the Seventh Amendment and Article III. Jarkesy dealt […]

Donald Trump thankfully survived an assassination attempt last weekend and may well win back the presidency in November.  What constitutional theories might a second Trump administration advance? Trump himself has suggested one possibility:  He has promised to assert a “Constitutional power to stop unnecessary spending through what is known as Impoundment.”  In other words, a second-term President Trump would […]

Pacific Legal Foundation and the Georgetown Journal of Law & Public Policy seek papers for a symposium titled “The Future of Agency Adjudication after SEC v. Jarkesy” to be held in Washington, DC in winter 2025. Details from the announcement are excerpted below.

Two weeks ago, the Supreme Court issued two major decisions concerning judicial review of federal agency regulations. Already, plenty of ink has been spilled praising and deriding the decisions. But to understand whether the decisions should make you gleeful or panicked, it is important to understand both their limits and their breadth. In Loper Bright Enterprises […]

Here is the June 2024 Edition of the most-downloaded recent papers (those announced in the last 60 days) from SSRN’s U.S. Administrative Law eJournal, which is edited by Bill Funk. Thanks to my terrific research assistant Neena Menon for helping put together this monthly post. I’ll report back in the August with the next edition.

Many people, including Supreme Court Justices, have expressed concern about flip flopping by the Solicitor General (SG), i.e., arguing in support of a position that is inconsistent with the position that the government took in the past. In The Solicitor General, Consistency and Credibility, forthcoming in the Notre Dame Law Review, Professors Margaret Lemos and […]

Last month the Administrative Conference of the United States adopted an important recommendation regarding the role of Senate-confirmed officials in agency adjudication. The recommendation drew three separate statements from members of the Administrative Conference—including a concurring statement from me and Melissa Wasserman and two dissenting statements by Jennifer Dickey, John Duffy, Jenn Mascott, and Kate […]

Tell me about despair, yours, and I will tell you mine.Meanwhile the world goes on. – Mary Oliver October Term 2023 ended with a bang. Chevron deference is no more, a gaping hole has been carved into the APA’s statute of limitations, and the Court has once again halted an EPA regulation mid-litigation. This is, to understate matters considerably, a dreary time […]

When the Supreme Court throws out the most cited case in your field, initial reactions may range from despair to elation—strong feelings related to the merits and consequences of the decision—to a more pedestrian variety of consternation: I have to re-write my casebook!  As concerns Chevron’s demise, the shift in case-law at the very least warrants the latter form of […]

By immunizing Presidents against criminal liability in some circumstances, the Supreme Court’s recent decision in Trump v. United States limited one form of potential accountability for lawless presidents.  Whatever the scope of this immunity, however, the decision left in place one of the most important constraints on the American presidency:  the need to act through subordinates to carry out […]