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.
Administrative Law
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.
CMS Vaccine Mandate for Health Care Workers Enjoined Nationwide
Two district courts have granted injunctions against the rule requiring vaccines for workers at Medicare and Medicaid providers, one nationwide.
Will Sixth Circuit Take OSHA ETS Case En Banc? (Updated)
A petition has been filed asking the full court to hear the legal challenges to the OSHA COVID-19 vaccinate-or-test mandate.
Challenges to OSHA Vaccine-or-Test Standard to Be Heard by Sixth Circuit
As a result of the multi-district litigation lottery process, all of the challenges will be heard in a single circuit.
Divided Sixth Circuit Refuses to Stay FDA's Denial of Vaping Product Application
In rejecting Breeze Smoke's application for a stay of the FDA's rejection of their product applications, the Sixth Circuit disagrees with the Fifth Circuit.
Assessing the Fifth Circuit's Decision Staying OSHA's Vaccinate-or-Test Emergency Temporary Standard
While the court identified serious problems with the new OSHA regulation requiring larger employers to vaccinate or test their workers, its opinion was rushed and sloppy.
D.C. Circuit Concludes Trailers Are Not "Motor Vehicles"
A partially divided panel concludes the Environmental Protection Agency may not regulate trailers as “motor vehicles.”
"Zombie" Voting at the Federal Trade Commission
The FTC is apparently taking actions based upon votes cast by a Commissioner who is no longer on the Commission.
Could the OSHA Vaccine-or-Test ETS Fall Prey to the Congressional Review Act?
Several Republicans are seeking to overturn the new OSHA rule. Despite the razor-thin margins in both Houses, a repeal resolution will not get enacted.
Biden Administration Imposes Vaccine Mandate on Health Care Facilities that Participate in Medicare or Medicaid
The Center for Medicare and Medicaid Services has adopted a more stringent rule for health care providers than OSHA is imposing on large employers.
OSHA (Finally) Issues Emergency Standard Mandating Large Employers Require Vaccination or Testing (Updated)
The federal standard contains some carve outs that were not part of the White House announcement, likely to help insulate rule from legal challenge. (Updated with a response to Ilya Somin.)
Fifth Circuit Rebukes FDA for Regulatory "Switcheroo" in Denying Vaping Product Applications
Yesterday's decision eviscerated the Food and Drug Administration for its arbitrary and capricious handling of vaping product applications
Are Biden Administration's Offshore Wind Plans Just a Fantasy?
Without attention to the onerous permitting process for offshore wind and other energy projects, efforts will be plagued by costly delays.
On the Sacketts and S.B. 8
Governments should not design laws and regulations to frustrate judicial review.
Notice and Comment Symposium on Reviving Rationality by Livermore & Revesz
An extended symposium engaging with an important new book on the use and misuse of cost-benefit analysis in regulatory review.
Can the Federal Government Require Vaccination of Health Care Workers?
Exploring the legal issues raised by another of the Biden Administration's newly announced COVID policies.
A Backgrounder on the Proposed OSHA Vaccination Mandate and Likely Legal Challenges (Updated)
Why legal challenges to the new rule are more likely to focus on the details than on broad challenges to OSHA's authority.
Did the Supreme Court's DACA Decision Lead to the Biden Administration's "Remain in Mexico" Defeat?
Professors Zachary Price and Benjamin Eidelson offer competing takes.
Is Administrative Law Either? A Debate
A Feddie Fight Night on the Administrative State featuring Prof. Gary Lawson and Prof. Nicholas Bagley
The Honorable Thomas Griffith, Blogger
The former D.C. Circuit Judge is now a contributor to the Yale Journal on Regulation's Notice & Comment blog.
Government Officials' Internet Browsing Histories Are Not Agency Records under FOIA
The D.C. Circuit rejects an effort to obtain internet browsing histories under the Freedom of Information Act
Could Congress Use the Congressional Review Act to Expand Agency Authority?
Two professors have proposed using the CRA to authorize agency actions and avoid the filibuster. Would it work?
Democrats Learn to Love the Congressional Review Act (At Least a Little Bit)
Last week, the CRA was used for the first time to repeal regulations adopted by a Republican President.
Supreme Court Declines to Consider Chevron Deference Because Government Did Not Ask It To (Updated)
An interesting administrative law tidbit in one of today's Supreme Court decisions.
Sixth Circuit Takes Bump Stock Case En Banc
What seems like a gun rights case actually presents some important questions of administrative law.
BREAKING: SCOTUS Holds 7-2 Texas Lacks Standing to Press Obamacare Claim (Updated)
The Supreme Court properly concludes that there is no standing to challenge a legal provision that has no effect.
Perhaps the Shortest Standing Opinion You'll Ever Read
The Sixth Circuit made quick work of a district court opinion concluding Ohio lacked standing to sue for overdue Census data.
A Potential Way Forward for Nondelegation Concerns
Focusing on time and the "nondelegation baseline" would be one way to constrain excessive delegation.
Nondelegation Doctrine Lessons from State Experience
Two recent papers examine the state experience with nondelegation.
Democrats Learn to Love the Congressional Review Act
Senate Democrats vote to repeal a Trump Administration regulation easing restrictions on methane emissions.
Are Sunstein and Vermeule Offering a Defensive Crouch Administrativism?
My contribution to the online symposium on Sunstein & Vermeule's Law & Leviathan
When Super Deference Is Not So Super
"Super Deference and Heightened Scrutiny" forthcoming in the Florida Law Review
Notice & Comment Symposium on Sunstein and Vermeule's Law & Leviathan
A series of essays weighing Cass Sunstein and Adrian Vermeule's effort to redeem the administrative state.
Divided Sixth Circuit Panel Rejects Chevron Deference for Interpretation of Criminal Statute
A long awaited decision in a challenge to the Trump Administration's "bump stock" ban tees up some interesting questions for the High Court's review.
Will Democrats Learn to Love the Congressional Review Act?
The CRA may offer Democrats a quick and easy way to repeal Trump Administration regulations, if they are willing to use it.
