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” […]
Things don’t move fast in Washington—until they do. Just hours after we published our piece explaining why EPA waivers of Clean Air Act preemption are subject to congressional review under the CRA, GAO published a memo of “observations” taking the opposite view. In addition, UC Berkeley Professors Dan Farber and Eric Biber have explained in […]
FCC v. Consumers’ Research (set to be argued on March 26) presents the Supreme Court with its latest chance to revitalize the nondelegation doctrine. The case centers on the multi-billion dollar universal service fund (USF) that, by statute, the FCC funds with fees from interstate telecom carriers to pay for various subsidy programs. The en […]
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 […]
As readers of Notice & Comment know, the Fifth Circuit has an active administrative law docket and often serves as a proving ground for cases on their way to the Supreme Court. This has been a regular column for the past few years, and I’m excited to take-up regular coverage and commentary on the court […]
The Supreme Court recently decided CIC Services v. Internal Revenue Service, 593 U.S. __ (2021). Commentators on Notice & Comment and elsewhere have already discussed this decision’s implications for the Anti-Injunction Act and challenges to federal taxes. What has apparently gone unnoticed, however, is what the Court’s decision implies for the Administrative Procedure Act and […]
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. When Trump Is Gone, Will CA9 Start Abnegating? If you’re an anti-administrativist, it’s been a great four years in CA9. During the Trump-era, the Ninth Circuit filled the Federal Reporter with orders […]
The debate over the propriety of the nationwide or “universal” injunction continues to unfold. Just this month, in a dissenting opinion in Little Sisters of the Poor v. Pennsylvania, Justices Ginsburg and Sotomayor took a stand in favor of the permissibility of such injunctions, balancing off comments to the contrary in earlier opinions by Justices […]
Yesterday, the Fifth Circuit heard oral argument in Texas v. United States. It was pretty brutal: consistent with the reporting, the two Republican-appointed judges on the panel appeared receptive to the argument that the Affordable Care Act should be declared invalid. (The Democrat-appointed judge was silent.) Just how receptive is hard to say, and it’s […]