In a recent post, Prof. Aaron Nielson noted that Notice & Comment once considered starting a “D.C. Circuit Review–Reviewed-style column for the Ninth Circuit.” This sounded like a great idea to me, so I reached out to the editors and volunteered for the part. Henceforth, on the 9th of every month, I’ll report on the […]
A CALL FOR PAPERS As the White House’s Office of Information and Regulatory Affairs nears its fortieth birthday, we tend to spend a lot of time thinking about its history. But in a constitutional government that is nearly 230 years old, OIRA is actually very, very young—less a monument than an experiment. Instead of thinking […]
Yesterday the House Judiciary Committee marked up and reported out favorably legislation that would attempt to prohibit federal courts from issuing certain types of nationwide injunctions: No court of the United States (and no district court of the Virgin Islands, Guam, or the Northern Mariana Islands) shall issue an order that purports to restrain the […]
Here are the details: 2018 Administrative Law Conference November 1-2, 2018 | Washington Convention Center, Washington, DC The final agenda for the 2018 Administrative Law Conference is coming soon. Take advantage of our Section Member and Group Discount rates listed below! Topics include the following: Developments in Administrative Law (Parts I & II) Lucia’s Aftermath: […]
On Friday evening, the Wall Street Journal reported that the Trump administration would be suspending risk adjustment payments due for 2017 and 2018. The next day, CMS scurried to clarify that the suspension was a necessary response to an adverse court judgment out of New Mexico. “As a result of this litigation,” Administrator Seema Verma […]
On Friday afternoon, a district court in Pennsylvania enjoined the Trump administration’s new rules on contraception coverage from taking effect. The court’s ruling was not unexpected: I’d argued earlier that the rules were vulnerable on both procedural and substantive grounds, and the court’s analysis largely tracks my own. Procedurally, the Trump administration had no good […]
Here is the April 2017 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. Moral Commitments in Cost-Benefit Analysis by Eric Posner & Cass Sunstein [CJW Note: This is a great paper about quantifying moral values in cost-benefit analysis by eliciting […]
Over at Jotwell, Kathryn Watts reviews my co-blogger Nick Bagley’s latest article, Remedial Restraint in Administrative Law, which is forthcoming in the Columbia Law Review. We need more scholarly discussion on remedies in administrative law — Sam Bray’s new paper on nationwide injunctions comes immediately to mind — and Professor Watts’s review and Nick’s article are terrific […]
In many respects, the Supreme Court’s cert grant earlier this week in United States v. Texas was utterly unsurprising. The Fifth Circuit Court of Appeals affirmed a nationwide injunction blocking a Department of Homeland Security policy that would have allowed approximately 4 million parents of U.S. citizens and lawful permanent residents to seek “deferred action” […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” This month, we tackle Nebraska v. Su, in which a split three-judge panel sided with the challengers against President Biden’s $15 minimum wage mandate for federal contractors. Besides engendering a direct circuit split, […]
Reflecting on the litigation over the FTC’s non-compete rule, it struck me that the Supreme Court’s decision in Corner Post is a huge win for the government masquerading as a loss. A key sentence in the opinion should put the last nail in the coffin of universal remedies. If I’m right about this prediction, Corner Post’s implications for […]
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 […]
A vigorous debate recently has emerged over whether the APA authorizes federal courts to vacate agency action on judicial review. Perhaps because this debate is an outgrowth of the longer-running dispute over “nationwide” or “universal” injunctions, it is operating on the premise that vacatur is a remedy, like an injunction or a declaratory judgment. I’m […]
The Judicial Conference of the United States recently directed federal district courts to assign cases that seek broad relief, such as a challenge to a federal regulation, randomly on a district-wide basis. The judicial conference’s guidance follows similar statements by the American Bar Association, proposals to amend the federal rules, and proposed legislation. In any other era, this minutia of […]
Many lower federal courts hold that section 706(2) of the Administrative Procedure Act, 5 U.S.C. § 706(2), instructs courts reviewing agency regulations to vacate regulations that are unlawful as defined by that provision. Vacatur as the courts understand it is distinct from injunctions against enforcement proceedings and declaratory judgments. Unlike remedies that operate with respect […]