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.
Administrative Law
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.
West Virginia v. EPA: What Would Have Been the Result Under the Chevron Doctrine?
The Court did not engage with the doctrine directly (as opposed to simply creating an exception to it). How, in fact, would the case have been decided under Chevron?
West Virginia v. EPA: Was "Major Questions" Necessary?
A correct interpretation of the statute at issue—Section 111(d) of the Clean Air Act—does not give the EPA the authority to issue the sort of regulations at issue in the case.
West Virginia v. EPA: An Advisory Opinion?
Deciding the case might have been squarable with Article III, but not the way Court went about it.
D.C. Circuit Makes It More Difficult for New Administrations to Stop "Midnight" Rules
It may now require notice and comment to rescind final rules that were never published in the Federal Register.
The Progressive Case for Cost-Benefit Analysis (But Not As Conducted in the Trump Administration)
My review of Reviving Rationality:Saving Cost-Benefit Analysis for the Sake of the Environment and Our Health by Michael Livermore and Richard Revesz.
Does West Virginia v. EPA Doom the SEC's Climate Disclosure Rule? (Updated)
The Supreme Court is skeptical of agency efforts to pour new wine out of old bottles.
Will Chevron Get the Lemon Treatment?
The Supreme Court proclaimed this term that the Lemon test had been abandoned. Is this what is in story for Chevron?
The Food & Drug Administration Has a Vaping Problem
Something is wrong at the Food & Drug Administration's Center for Tobacco Products, and federal courts are beginning to notice.
Super Deference and Heightened Scrutiny
What should courts do when an agency action is based upon scientific evidence within the agency's expertise, but also implicates heightened scrutiny?
Justice Kagan Throws Down the Gauntlet: We Are Not "All Textualists Now"
In her forceful West Virginia v. EPA dissent, Justice Kagan challenges the majority's commitment to textualism.
Supreme Court Gives Biden Administration a (Temporary?) Win on Immigration with Final Decision of Term
Chief Justice Roberts final opinion of the term rejects the statutory challenge to the Biden Administration's rescission of the "Remain in Mexico" policy.
Supreme Court Rejects Broad EPA Authority to Regulate Greenhouse Gases from Power Plants (Updated)
Chief Justice Roberts writes for a six-justice majority in West Virginia v. EPA.
Supreme Court Decides Major Chevron Case Without Citing Chevron
American Hospital Association v. Becerra is another indication that lower courts are too quick to give agencies Chevron deference.
Chief Justice Roberts Explains DIG of Public Charge Case
The Supreme Court has decided not to decide an important question relating to flips in federal policy when Administrations turn over.
Barrett v. Gorsuch -- Continued
Justice Gorsuch has dissented from two-thirds of Justice Barrett's majority opinions this term.
Supreme Court Turns Away Red State Effort to Block Social Cost of Carbon
Without opinion the justices rejected Louisiana's application to vacate a lower court stay.
Will the Supreme Court Consider the Social Cost of Carbon?
Not a single judge on the U.S. Court of Appeals for the Fifth Circuit sought to reconsider a stay of a district court opinion barring consideration of the Biden Administration's social cost of carbon estimates.
Fifth Circuit Stays Erroneous District Court Injunction Against Social Cost of Carbon Estimates
In a brief per curiam opinion, the Fifth Circuit concludes the plaintiff states lack standing to press their claims.
Supreme Court Digs into Statutory Details More than Standing or Nondelegation in West Virginia v. EPA
At today's oral argument, the justices explored Section 111 of the Clean Air Act, the major questions doctrine, justiciability and the regulation of advertising for four-foot cigars smoked through hookahs.
Climate Change Returns to the Supreme Court: Previewing West Virginia v. EPA (Updated)
The most important environmental case of the 2021-22 term will be heard next week.
