Can Emergency Room Doctors Sue the FDA for Failing to Regulate Mifepristone More Aggressively?
The threshold issue in today's oral argument is Article III standing, and that issue should be determinative.
Administrative Law
Supreme Court Shows Little Interest in Investigating Executive Power under the Antiquities Act
Yet another case that Justice Kavanaugh would like to hear that does not interest enough of his colleagues.
Solicitor General Takes Vaping to the Supreme Court
The Department of Justice is asking the Supreme Court to review the Fifth Circuit's Rejection of the FDA's "Surprise Switcheroo."
Does the Law of Standing "Need a Rewrite" After TransUnion?
Another federal appellate judge expresses discontent with current standing doctrine.
Does Anonymity Defeat Associational Standing?
The Second Circuit divides over whether an association must identify an injured member by name for the purposes of Article III. (Updated)
SCOTUS Ponders the Implications of Prosecuting Gun Owners for a Crime Invented by Bureaucrats
Several justices seemed troubled by an ATF rule that purports to ban bump stocks by reinterpreting the federal definition of machine guns.
Did Justice Jackson Disclose the Outcome in Relentless and Loper-Bright? (UPDATED)
Did we get a hint to the outcome in one of this term's bigger cases at today's oral argument?
Supreme Court Denies Red State Effort to Intervene in Mifepristone Case
The Court also rejects a late-filed amicus briefs from the American Bar Association, but accepts one from former FDA Commissioners.
Whether Chevron Stands or Falls, Any Deference Should Be Based Upon Delegation, Not Ambiguity
Some thoughts on the most important issue in Relentless and Loper Bright.
Video of Federalist Society "Seat at the Sitting" Panel on Upcoming Supreme Court Cases
The panel covered many cases and featured views many would not expect at a Fed Soc event.
BREAKING: Supreme Court to Consider Fifth Circuit's Abortion Pill Decision
The Court granted two petitions for certiorari seeking review of a controversial lower court decision limiting federal approval of mifepristone.
Supreme Court Dismisses ADA Tester Standing Suit as Moot
The Supreme Court's first decision of the term does not decide very much.
SEC v. Jarkesy and the Future of Agency Adjudication
An important challenge to the use of agency adjudication to enforce federal regulations.
Do You Still Have the Right to a Jury Trial?
The Supreme Court will consider whether federal agencies’ administrative judges violate the Seventh Amendment.
The Supreme Court Should Not Let Bureaucrats Invent Crimes by Rewriting the Law
The Trump administration’s unilateral ban on bump stocks turned owners of those rifle accessories into felons.
Supreme Court Denies Review of Social Cost of Carbon Challenge
The Court saw no reason to consider the Eighth Circuit's conclusion that the states lacked standing.
What If They Amended the Administrative Procedure Act and No One Noticed?
Congress made a small addition to the requirements for notice-and-comment rulemaking.
Is It Unamicable to Reject the Argument of a Friendly Amicus Brief?
The Solicitor General rejects an academic argument offered in defense of the Consumer Financial Protection Bureau.
Another Appeals Court Accuses the FDA of Committing "Surprise Switcheroo"
The U.S. Court of Appeals for the D.C. Circuit takes issue with how the FDA evaluated Fontem's unflavored vaping products.
Is OMB Stacking the Deck for More Progressive Cost-Benefit Analysis?
The Biden Administration is revising the rules for how agencies conduct cost-benefit analyses, and some CBA experts have expressed concerns.
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.
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.
