Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before (arguably) the “second most important court in the land.” Let’s get straight to business. FCIC Reaps Kisor Deference Congress created the Federal Crop Insurance Corporation “to improv[e] the economic stability of agriculture.” The FCIC carries out this mandate by offering reinsurance to […]

Loper Bright Enterprises v. Raimondo recognizes that Congress may delegate to agencies the authority to exercise discretion in a certain domain, as I have argued. A further question, of both doctrinal and practical significance, is whether those delegations must be express, or instead can also be implied. In an excellent recent online seminar, my esteemed co-author Michael Herz […]

Over the last week, the Supreme Court put the administrative state under significant new scrutiny, signaling a turning point in a larger project of consolidating policy decision-making power in the judiciary. One case to spotlight is SEC v. Jarkesy, which raises questions about the future role of agencies in enforcing statutory violations. The Court in Jarkesy held that […]

Given the amount of commentary being addressed to the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, it would appear that the Chevron decision may continue to be one of the Court’s most-discussed opinions even after its demise.  But the Court can, and should, seize the opportunity created by Loper Bright to shrink, rather than expand, the number of “doctrines” that […]

I’m currently writing an article tentatively titled “Statutory Liquidation,” which is about courts use of post-enactment practice or understanding to settle statutory meaning.* I was particularly interested, then, when in Loper Bright the Court not only cited Skidmore with seeming approval, but repeatedly emphasized the “respect” traditionally afforded to longstanding, consistent agency interpretations, especially when […]

In Loper Bright Enterprises v. Raimondo, the conservative majority of the Supreme Court finally made good on its threat to overturn the Court’s Chevron doctrine.  Since 1984, Chevron has required courts to defer to agency interpretations only after evaluating and passing three steps of analysis: (a) at “Step Zero” – by deciding that Congress has left ambiguities in a statute that (according […]

Short Answer, per Justice Gorsuch: “Today, the Court places a tombstone on Chevron no one can miss.” Today, in Loper Bright Enterprises v. Raimondo, the Supreme Court overruled the Chevron deference doctrine — the command from a 1984 decision that courts defer to federal agencies’ reasonable interpretations of ambiguous statutes the agencies administer. Chief Justice […]

Today, the Supreme Court decided Loper Bright Enterprises v. Raimondo which overruled Chevron v. NRDC. John Roberts, writing for a 6-3, ideologically divided court, held that Chevron Deference is not compatible with § 706 of the Administrative Procedure Act. The decision comes in the wake of SEC v. Jarkesy, in which the Court held that the Seventh Amendment entitles defendants to a jury […]

On Thursday, the Supreme Court decided SEC v. Jarkesy. The conservative appointees banded together in a 6-3 ruling, concluding that the Seventh Amendment entitles defendants to an Article III jury trial in SEC civil enforcement proceedings. First, John Roberts writes that the relevant SEC enforcement actions implicate the Seventh Amendment because the agency’s antifraud provisions mirror […]

From cancer-causing talc in baby powder to defective ear plugs sold to the military, to sexual assault in the Catholic Church, bankruptcy courts are increasingly becoming the default venue for mass torts.  Scholars have sharply debated whether bankruptcy courts are the right venue to decide questions of accountability, to apportion blame, and to set compensation for victims of large-scale corporate wrongdoing.  On the […]

Today, in SEC v. Jarkesy, the Supreme Court held that under the Seventh Amendment a regulated entity is entitled to a civil jury trial when the SEC seeks to impose civil penalties. In other words, when it comes to these civil penalties, Congress, by statute, cannot force regulated entities to defend themselves before an in-house […]

Today was a big administrative law day at the Supreme Court. And while Jarkesy was the more anticipated opinion, I found myself most interested by Ohio v. EPA, which stayed enforcement of an EPA rule designed to control ozone pollution that crosses state lines. The decision was 5-4, with Justice Gorsuch writing for the majority […]