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.
Administrative Law
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.
Help Solve Climate Change through Deregulation
Well-intentioned regulation often constrains the development and deployment of clean technologies.
Standing in West Virginia v. EPA Revisited
Why the arguments the Supreme Court lacks jurisdiction to hear the latest climate change case likely lack merit.
Federal Court Bars Federal Agencies from Considering the Costs of Climate Change in Rulemakings [Updated]
A federal district court has taken the unusual step of enjoining an Executive Order setting forth an Administration's regulatory priorities.
Hamburger v. Parrillo on the Nondelegation Doctrine
An interesting exchange on the implications of early agency power to revise tax assessments.
Judge Ketanji Brown Jackson's First Circuit Court Opinion
A unanimous panel rejects a Trump Administration change to rules on collective bargaining for government workers.
Why the Supreme Court's Decision in NFIB v. OSHA May Be Even Worse News for Climate Regulation than You Thought
Insofar as the Court was concerned about pretext, it may be more difficult for the EPA to reduce greenhouse gases using regulatory authority to control emissions.
Supreme Court Grants Certiorari to Clarify the Scope of Federal Regulatory Jurisdiction under the Clean Water Act
The Sacketts get a return trip to the Supreme Court.
Woolhandler on Public Rights, Taxation and Delegation at the Founding
Another contribution to recent scholarship on whether the Nondelegation Doctrine is properly rooted in the Constitution's original meaning and founding era understandings.
Additional Thoughts on the Supreme Court's Covid-19 Mandate Decisions
Assorted observations on yesterday's opinions, what they mean, and what comes next.
BREAKING: SCOTUS Stays OSHA Vax-or-Test Rule, Allows CMS Vaccine Mandate for Health Care Workers to Take Effect
By divided votes, the justices entered stayed t the OSHA Emergency Temporary Standard and stayed the lower court injunctions against the mandate that Medicare and Medicaid service providers require their employees to get vaccinated.
COVID-19, Major Questions, and Pouring New Wine from Old Bottles
Does it matter that the year Congress enacted the Occupational Safety and Health Act was as proximate to the Spanish Flu as to today?
Divided Sixth Circuit Panel Refuses to Stay Injunction Against Vaccine Mandate for Federal Contractors
The panel rejects the argument that the Federal Property and Administrative Services Act allows the federal government to require vaccination for nearly one-fifth of the American workforce.
Thoughts on Sixth Circuit OSHA Vax-or-Test Mandate Stay Decision and What Comes Next (Updated)
The question of whether to stay the BIden Administration rule requiring large employers to mandate vaccinations or testing is now before the Supreme Court.
"The Law of '. . . or Else'"
My review of Philip Hamburger's new book, Purchasing Submission.
Health Care Worker Vaccine Mandate Reaches the Supreme Court
The Biden Administration is seeking to stay lower court injunctions against the mandate.
Fifth Circuit Narrows Injunction Against CMS Vaccine Mandate for Medicaid and Medicare Providers
The district court's justification for a nationwide injunction was decidedly lacking.
Breaking: Sixth Circuit Refuses to Hear Challenges to OSHA Vaccinate-or-Test Rule En Banc (Updated)
A majority of judges on the court did not vote in favor of the petitions for initial hearing en banc, so the challenge will be heard by a three-judge panel
Supreme Court Denies Breeze Smoke Stay Application
The justices show little interest in vaping regulation on the shadow docket, but may yet review the FDA's behavior in the regular course.
Will Vaccine Mandate for Health Care Workers Be First to Reach the Supreme Court?
Now that a federal appeals court has weighed in, the CMS mandate may reach One First Street.
District Court Issues National Injunction Against Biden Administration Vaccine Mandate for Federal Contractors
Two federal district courts have now ruled against the mandate for federal contractors.
En Banc Sixth Circuit Splits 8-8 Over Bump Stock Ban
The district court decision upholding the ATF's conclusion that bump stocks constitute unlawful "machine guns" is upheld by an equally divided court.
