"There Is, Technically, No Snail Darter," But the Snail Darter Still Delayed the Tellico Dam
A case study in how the Endangered Species Act encourages the politicization and distortion of science.
Administrative Law
Sixth Circuit Rejects FCC's Open Internet Order as Inconsistent with Statutory Text
The unanimous panel has little difficulty concluding the FCC sought to exercise authority it did not have.
The DOGE Daze of Regulatory Reform
Why Elon Musk and Vivek Ramaswamy are overestimating the extent to which the administrative state can be brought to heel through Presidential fiat.
Justice Jackson Authors First Decision of OT2024
The junior justice authors a unanimous immigration law decision for the first of the term.
A Change in Administrations Underlines the Stakes of an E-Cigarette Case SCOTUS Heard This Week
An e-liquid manufacturer is challenging the FDA's "arbitrary and capricious" rejection of flavored vaping products.
After Hunter's Pardon, Joe Biden Should Support De-Weaponizing Government Power
Maybe we can all agree that government officials shouldn’t target political enemies.
DC Circuit Finds Some FINRA Authority Violates Private Nondelegation Doctrine
The private nondelegation doctrine is getting an increasing amount of attention from the courts.
Supreme Court Grants Certiorari in Nondelegation Case
A challenge to the FCC's Universal Service Fee could produce a major administrative law decision.
The New FCC Chairman's Agenda Contradicts Conservative Principles
Brendan Carr’s plans for "reining in Big Tech" are a threat to limited government, free speech, free markets, and the rule of law.
Supreme Court Refuses to Resurrect the Kids Climate Case
Unsurprisingly, no justice showed any interest in reviving a lawsuit that should have died long ago.
During Trump's Second Term, the Supreme Court's Critics Will Be Grateful for Its Restraining Influence
The justices, including Trump's nominees, have shown they are willing to defy his will when they think the law requires it.
"The Truth of Erasure" - A Defense of Universal Remedies
The Ohio Solicitor General's office defends universal vacatur under the Administrative Procedure Act
The Feds' Chinese Investment Ban Will Harm America, Not China
The Treasury's sweeping rule curtailing dual-use technology transactions with Chinese firms will reduce domestic growth, innovation, and security.
Feds Launch Investigation Into Tesla Over a Single Fatality
The National Highway Traffic and Safety Administration is holding vehicles to higher standards than it does drivers.
Supreme Court to Tackle Who Can Sue Agencies Where and for What
With today's cert grants, the Court now has four cases that address the issue of where suits can be filed against federal agencies and who can file them.
D.C. Circuit Grants En Banc Review to Consider Reviewability of FEC Enforcement Discretion
It appears that a majority of judges on the D.C. Circuit believe it should be easier to seek judicial review of Federal Elections Commission non-enforcement decisions.
Supreme Court Refuses to Stay Biden EPA Power Plant Rule
Some were surprised by the Supreme Court's action, but they should not have been.
The Appointments Clause Goes Fishing
A successful appointments clause challenge to Regional Fishery Management Councils. (Updated to fix block quotes)
Most Justices Seem Inclined To Uphold the ATF's New Restrictions on Homemade Firearms
The Supreme Court is considering whether a rule targeting "ghost guns" exceeds the agency's statutory authority.
ACUS Program on Nationwide Injunctions and Regulatory Programs
A recent pair of panels looking at how nationwide injunctions impact federal regulatory programs.
California Gov. Gavin Newsom Vetoes Car Speed Alarm Bill
He returned S.B. 961 to the California Senate for all the wrong reasons.
Justice Kavanaugh Warns Against Over-Reading Loper Bright Decision
The Court's decision to overturn Chevron should be seen as more of a "course correction" than a revolution. (Updated with Video.)
Alliance for Hippocratic Medicine on Remand - Still Struggling with Standing
No, the U.S. Court of Appeals for the Fifth Circuit's initial standing rulings were not faithful applications of Supreme Court precedent.
A Conversation with Solicitor General Elizabeth Prelogar
One of the nation's finest oral advocates discusses representing the United States in the Supreme Court and other topics.
The Feds Think They Can Save 67 Lives for the Low, Low Price of $48 Million
The National Highway Traffic Safety Administration declares a crisis and issues new regulations.
Sixth Circuit Puts Net Neutrality Rule on Ice
A three-judge panel concludes the rule's challenger are likely to succeed on the merits.
Struggling with Standing
The Supreme Court's conservatives are not cutting conservative litigants any slack (and that's a good thing).
En Banc Fifth Circuit Concludes FCC's "Universal Service" Fee Is Unconstitutional
A majority of the judges concludes this fee constitutes a tax, the authority for which is improperly delegated.
The Federal Trade Commission Needs To Stay in its Lane
Recent actions by the FTC show that its officers should review the Constitution.
The DEA Wants To Ban Scientifically 'Crucial' Psychedelics Because People Might Use Them
The agency claims DOI and DOC have "a high potential for abuse" because they resemble other drugs it has placed in Schedule I.
Utah Joins Growing Number of States Ignoring Biden Admin's New Title IX Rule
The Biden administration says its new Title IX interpretation is a legitimate reading of the statute, but opponents characterize it as arbitrary and capricious.
The Authoritarian Side of Effective Altruism Comes for AI
Proposed bills reveal the extreme measures E.A.’s AI doomsayers support.
From "Deference" to "Respect" - The Real Import of Loper Bright
The decision to overturn Chevron removes an agency trump card, but does not instruct courts to ignore agency opinions--and they won't.
SCOTUS Will Decide Whether the FDA's 'Regulatory Switcheroos' on Vaping Were 'Arbitrary and Capricious'
The 5th Circuit ruled that the agency violated the Administrative Procedure Act when it rejected applications from manufacturers of flavored nicotine e-liquids.
Two SCOTUS Cases Show How an Unaccountable Administrative State Hurts 'Ordinary People'
Contrary to progressive criticism, curtailing bureaucratic power is not about protecting "the wealthy and powerful."
Why the End of Chevron Could Be a Win for Immigrants
“Immigration is an area of the law where the partisan alignments break down over Chevron.”
The Supreme Court's Decision Overruling Chevron is Important - But Less so than You Might Think
It won't end the administrative state or even significantly reduce the amount of federal regulation. But it's still a valuable step towards protecting the rule of law and curbing executive power.
SCOTUS Repudiates Doctrine That Gave Agencies a License To Invent Their Own Authority
The Court says Chevron deference allows bureaucrats to usurp a judicial function, creating "an eternal fog of uncertainty" about what the law allows or requires.
SCOTUS Stays Enforcement of EPA's "Good Neighbor" Air Pollution Rule (Updated)
In a 5-4 decision, the male justices side with the state and industry challengers and the female justices side with the Environmental Protection Agency
SCOTUS Rules SEC's In-House Handling of Securities Fraud Cases Violates the Right to Trial by Jury
The decision rejects a system in which the agency imposes civil penalties after investigating people and validating its own allegations.
Supreme Court Sends Message with Narrow Standing Holding in Murthy v. Missouri
Even if one thinks the federal government crossed the line in pushing more aggressive social-media-platform content moderation policies, plaintiffs must still satisfy the traditional requirements of Article III standing.
Critics Fundamentally Misconstrue the Supreme Court's Bump Stock Ruling
The case hinged on the ATF’s statutory authority, not the Second Amendment.
Abortion, Guns, and Hunter Biden.
Plus: A listener asks the editors about the Selective Service.
Divided Sixth Circuit Panel Affirms Preliminary Injunction Against Department of Education Title IX Guidance
The court concludes states are likely to succeed in their procedural challenges to the Education Department's decision to extend Bostock to Title IX.
Supreme Court Upholds the Rule of Law by Rejecting the Trump Administration's Bump Stock Ban
Six justices agreed that federal regulators had misconstrued the statutory definition of a machine gun.
Justice Thomas Takes Aim at Associational Standing
In his AHM v. FDA concurrence, Justice Thomas suggests the Court needs to rethink associational standing and questions whether it comports with Article III.
Unanimous Supreme Court Finds No Standing to Challenge FDA Regulation of Mifepristone (UPDATED)
Not a single justice was impressed by the unimpressive standing theories offered in Alliance for Hippocratic Medicine v. FDA.
