Fourth Circuit Concedes to Congress on Mountain Valley Pipeline
The judges recognize that Congress ended their ability to review the Mountain Valley Pipeline, but they seem none too happy about it.
Administrative Law
The Major Questions Doctrine "Reflects a Deeply Held Impulse in Common Law Adjudication."
The idea that greater assertions of executive authority require greater support than ordinary acts is not a new one.
Lots of Administrative Law On Tap for Next Supreme Court Term
The Court will consdier whether to invalidate the CFPB's funding, narrow standing, and overturn Chevron, among other things.
John Sununu on Boyden Gray's Legal Legacy
C. Boyden Gray was a pivotal figure within the Republican Party on environmental law.
In Sackett v. EPA, the Supreme Court Cuts Back Federal Regulatory Authority Over Wetlands
The Clean Water Act decision was a unanimous win for the Sacketts, and a 5-4 victory for Justice Scalia's 2006 Rapanos v. United States plurality.
Will We Ever Get an SEC Climate Disclosure Rule?
The Securities & Exchange Commission again delays issuing a controversial anticipated rule.
Summary Reversal of Sixth Circuit in Calcutt v. FDIC Reaffirms the Importance of Chenery I
A welcome reminder that reviewing courts must judge the propriety of agency actions solely by the grounds invoked by the agency.
Supreme Court Could Rein In Administrative State With New Case
Plus: Divides over misinformation, on free markets and social justice, and more…
Chevron Matters — But Not as Much as You Might Think
Overruling Chevron won't gut the administrative state or even severely constrain it. But it could help strengthen the rule of law.
Has the Supreme Court Put Chevron in the Crosshairs?
One of today's two cert grants comes in a case asking the justices to reconsider Chevron v. NRDC.
Sixth Circuit Panel Rejects Bump Stock Ban (Again)
A three-judge panel concludes that bump stocks cannot be considered machine gun parts under the rule of lenity.
Public Opinion about Regulation
Is the publc getting what it wants from the administrative state?
Unanimous Supreme Court Affirms Right to Challenge Federal Agencies in Federal Court
Those claiming they are subject to unconstitutional agency proceedings need not suffer through agency proceedings before bringing their claims to federal court.
The Good and Bad of the Fifth Circuit's Abortion Pill Ruling
The appeals court's unpublished order avoids some of the district court's errors, but still has some significant problems, especially with regard to standing.
Two (Wrong) Mifepristone Court Rulings in One Day
On Good Friday, two district courts issued decisions on the FDA's approval of the abortion drug mifepristone.
Louisiana Loses Social-Cost-of-Carbon Lawsuit in the Fifth Circuit (Again)
The plaintiff states lack standing to challenge the Biden Administration's interim Social Cost of Carbon estimates
Blue-State AGs Have A Mifepristone Lawsuit of Their Own
And this lawsuit faces many of the same administrative law hurdles as does AHM v. FDA.
AHM v. FDA: A Contrary View and a Rejoinder
ADF's Erin Hawley responds to my post on the jurisdictional problems in AHM v. FDA and I reply.
Ending Chevron Deference in the States
While the US Supreme Court continues to require judges to defer to administrative agencies' interpretations of law in many situations, numerous states have abolished or severely curbed such deference. The results should temper both hopes and fears associated with ending judicial deference to agencies.
Fifth Circuit Again Stays FDA Denial of E-Cigarette Product Application
Another opinion exposing the Food and Drug Administration's vaping problem.
D.C. Circuit Reverses District Court for the Third Time in a Single Case
Somehow a district court has made erroneous rulings three times in one case, and still has not reached the merits.
Assessing the Legal Claims in Alliance for Hippocratic Medicine v. FDA
There's been lots of heat, but very little light in coverage and commentary about the lawsuit seeking to revoke FDA approval of mifepristone.
On Universal Vacatur, the Supreme Court, and the D.C. Circuit
Thoughts on recent oral argument exchanges on whether the Administrative Procedure Act contemplates (let alone requires) universal vacatur.
Can a Federal Court Vacate a Regulation Without First Concluding It Was Unlawful?
A Ninth Circuit opinion concludes that when a federal agency seeks a voluntary remand of a contested rule, that is not enough to vacate the regulation.
FTC Chair's Activism Prompts a Commissioner to Resign
FTC Commissioner Christine WIlson is resigning from the Commission. (Updated)
Justice Kavanaugh on Major Questions, Chevron, and US News Rankings
Associate Justice Brett Kavanaugh addressed questions on a range of questions at a recent Notre Dame symposium.
Fifth Circuit Grants En Banc Rehearing to Challenge to FDA Rejection of Vaping Products
Another potential legal setback for the FDA's attempt to regulate electronic cigarettes as tobacco products.
En Banc Fifth Circuit Denies Chevron Deference to ATF in Bump Stock Case
A majority of judges concluded the plain language of the statute does not apply to bump stocks, but they also would have denied Chevron deference had they found the statute ambiguous.
Illinois City Agrees To Stop Fining People for Resisting Warrantless Home Inspections
Zion’s attempts to push out unwanted renters collides with Fourth Amendment protections.
Biden Administration Finalizes New WOTUS Definition for the New Year
The EPA and Army Corps have finalized a revised definition of "waters of the United States," which defines the scope of federal regulatory jurisdiction under the Clean Water Act.
Ohio Supreme Court Rejects Deference to Agency Statutory Interpretations
A new opinion concludes Ohio courts need not defer to agency interpretations. The justices are not unanimous, but no justice writes in favor of deference.
Divided D.C. Circuit Reaffirms F.E.C.'s Enforcement Discretion
A split U.S. Court of Appeals for the D.C. Circuit denied an en banc petition challenging the Federal Election Commission's failure to pursue claims against New Models.
Consumer Financial Protection Bureau
The Federal Government Can't Seem to Decide How the CFPB Is Funded
The Solicitor General's brief defending how the CFPB is funded contradicts what the agency and others have said in the past.
Supreme Court to Hear Student Loan Forgiveness Case
The justices refuse to vacate the injunction against President Biden's student loan forgiveness policy, but accept certiorari.
The Solicitor General Says It Is Not "Ever Too Late" to Get A Statute Right
Is the federal government giving up on statutory stare decisis?
Should the Sentencing Commission Get Auer Deference for the Number of "Images" in a Video?
The U.S. Court of Appeals for the Sixth Circuit disagrees on whether the word "image" is ambiguous.
Fifth Circuit: Horseracing Integrity and Safety Act Unconstitutionally Delegates Power to a Private Entity
A rare, successful nondelegation challenge in the U.S. Court of Appeals for the Fifth Circuit.
Customs and Border Protection Chief Refuses to Step Down (UPDATED)
The Biden Administration has reportedly asked for Commissioner Magnus's resignation, but he has refused to go.
Biden Administration to Require Federal Contractors to Report and Reduce Greenhouse Gas Emissions
A new proposed regulation may test the limits of the Executive Branch's authority to impose regulatory requirements on federal contractors.
Eighth Circuit Affirms Dismissal of State Suit Against Social Cost of Carbon
Another appellate court recognizes that federal courts lack jurisdiction to consider legal challenges to the Biden Administration's Social Cost of Carbon estimates.
Does the D.C. Bar Ethics Complaint Against Jeff Clark Implicate the Major Questions Doctrine?
In the wake of West Virginia v. EPA, it seems that "major questions" can be found almost anywhere.
The Biden Administration Finally Taps a Regulatory Czar
Noted environmental law scholar Richard Revesz will be nominated to head the White House Office of Information and Regulatory Affairs
Eleventh Circuit Finds FDA Treatment of Vaping Product Marketing Applications to be Arbitrary & Capricious
The likelihood that the Supreme Court considers the FDA's treatment of vaping products is increasing.
The Good, the Bad, and the Ugly of Jarkesy v. SEC
Assessing an aggressive Fifth Circuit opinion declaring Securities & Exchange Commission proceedings unconstituional.
The 5th Circuit Considers Whether the Trump Administration Was Legally Authorized To Ban Bump Stocks
Regulators imposed the ban based on a highly implausible and counterintuitive reading of federal law.
WV v. EPA: Some Answers about Major Questions (But Not All the Answers We Need)
My forthcoming article the good, the bad, and the likely implications of the Supreme Court's decision West Virginia v. EPA
West Virginia v. EPA: Getting to Actual Delegation
The Court should assimilate the “major questions” doctrine of West Virginia v. EPA and its precedents—including Chevron and what came even before that—to an approach that asks whether Congress has made an actual delegation. Only this will serve the relevant separation-of-powers principle.
West Virginia v. EPA: Questions About "Major Questions"
The major questions doctrine inverts the Chevron doctrine, is indeterminate, and, as a practical matter, will encourage courts to engage in something more akin to political punditry than law.