Court Concludes Ken Cuccinelli Not Lawfully Appointed Acting Director of USCIS
An important and thoughtful opinion that potentially invalidates Trump Administration refugee and asylum policies.
Administrative Law
Could President Trump Control the CFPB After He Leaves Office? (Updated)
The Consumer Financial Protection Bureau could be completely independent of the next occupant of the White House.
The BIA Is Behaving Badly (and Judge Easterbrook Is Not Amused)
In which the Board of Immigration Appeals decides it can ignore appellate court rulings and is nearly held in contempt.
Can Courts Consider Severability Before Other Questions?
An interesting amicus brief by Professor John Harrison in Seila Law LLC v. CFPB
Ninth Circuit Dismisses Kids Climate Case for Lack of Standing (Updated)
A divided panel of the U.S. Court of Appeals for the Ninth Circuit finds the plaintiffs lack Article III standing in Juliana v. U.S.
What If a Citizenship Question Doesn't Meaningfully Reduce Census Response Rates After All?
Newly released data suggests Census analysts dramatically over-estimated the extent to which a citizenship question would discourage responses.
BREAKING: Fifth Circuit Declares Individual Mandate Unconstitutional, Punts on Whether Rest of ACA Must Fall (Updated)
As if there wasn't enough going on this week, a federal appellate court issues a significant (and significantly flawed) ruling in the latest Obamacare challenge
Burning Man Sues the Federal Government Over Permitting Fees and a Sketchy Appeals Process
A federal lawsuit demands that the government honor its appeals process regarding the costs it imposes on the annual event.
Where Is the Fifth Circuit's Opinion in the Texas ACA Case? [Updated]
Oral argument was in July, so why hasn't the court issued an opinion yet?
Judge Katsas on DOJ's Delay in Seeking Expedited Appeal
If a case warrants an expedited appeal, the Justice Department should act like it.
What It Takes to Make a Federal Judge "Perplexed and Perturbed"
Judge Bybee's concurrence in decision rejecting challenge to "public charge" rule raises concerns about Congress's abdication of responsibility on immigration policy.
Justice Kavanaugh on Delegation and Major Questions (Updated)
The Supreme Court will not rehear Gundy v. United States, but Justice Kavanaugh seems ready to revisit the doctrine.
The Ballad of FDA v. Brown & Williamson
How the FDA lost, and gained, jurisdiction over cigarettes -- to a Newfoundland fishing-boat tune
Is the CFPB Unconstitutional? We'll Soon Find Out. (Corrected)
The Supreme Court will consider a constitutional challenge to the composition of the Consumer Financial Protection Bureau.
D.C. Circuit Upholds FCC Decision to Rescind "Net Neutrality" (But Rejects FCC Attempt to Preempt Conflicting State Law)
In a lengthy opinion, a divided three-judge panel turns away most of the legal challenges to the Federal Communications Commission's "Restoring Internet Freedom" Order
Can We Make Congress Legislate Again?
Tools exist to modify the incentives for legislative action, and Congress could deploy some of those tools itself to encourage more regular reauthorization and modernization of federal regulatory programs.
Gundy and the Future of Delegation
Will the courts ever be willing to curb excessive delegation? If not, could Congress learn to constrain itself?
Auer Deference Post-Kisor
The Supreme Court reined in Auer deference. Will lower court get the message?
Delegation and Time
Sometimes it is not the breadth of legislative delegation that is a problem, so much as it is the age (and potential obsolescence) of such delegation, and that's something Congress should learn to address.
Trump Administration Finally Wins a Sanctuary City Grant Condition Case
The ruling comes after a long string of losses blocking other administration efforts to deny federal law enforcement funds to sanctuary jurisdictions. The different result in this case is largely a product of the unusual nature of the program involved.
Appeals Court Rules Against Trump in Border Wall Case
The ruling upholds a trial court decision holding that the president cannot divert military funds to builds his proposed border wall.
Auer Deference and the Brand X Problem
What's the difference between the plurality's and the (quasi-)dissent's positions? The ability of agencies to overrule court interpretations in the future.
Auer Deference Survives Supreme Court Review (as the Liberal Justices Rule the Day)
The Court's four liberal justicces joined the majority in all three of today's Supreme Court's decisions
A Troubling Supreme Court Decision on Non-Delegation
Today's ruling in Gundy v. United States allows Congress to delegate to the executive broad power to create new criminal offenses. But there is hope the Court might reconsider Gundy in the future.
Is the Chevron Doctrine Really Such a Problem?
Concern about Chevron Deference Would Be Better Focused on Delegation
Justice Gorsuch Side-Swipes Chevron
In a dissenting opinion, Justice Gorsuch suggests it's a good thing when parties don't rely upon the Chevron doctrine.
Justice Department Asks Court to Narrow Auer Deference
In a just-filed brief, the Trump Administration asks Supreme Court to reduce the degree of deference government agencies receive.
Overturning Chevron Would Not Gut the Administrative State—but It Would Strengthen the Rule of Law
Eliminating judicial deference to administrative agencies' interpretations of federal law would not destroy the administrative state, or even significantly reduce the amount of regulation. But it would have some real benefits, nonetheless.
Is Supreme Court Limiting Chevron's Domain?
The justices show little interest in deferring to agency interpretations.
The Important but Arcane Procedural Issue That Might Upend the Restraining Order Against Defense Distributed
Did the settlement with the distributor of home gun-making hardware and software remove computer files from the United States Munitions List or just temporarily stop treating them as affected munitions?
Judge Kavanaugh and the Administrative State
How will a Justice Kavanaugh approach administrative law cases?
Kavanaugh and Executive Power - the Good, the Bad, and the Overblown
The debate over Judge Kavanaugh's views on executive power actually encompasses four separate issues. On some of them his views bode well for the future, on others not so much.
What Should Libertarians Fear Most from SCOTUS Pick Brett Kavanaugh?: Podcast
Jonathan Adler says he's "supremely qualified," an originalist, and a critic of the administrative state. But he's a cipher when it comes to defendants' rights.
SCOTUS Nominee Brett Kavanaugh Sees Perils of Aggressive Administrative State
Like Neil Gorsuch, the D.C. Circuit judge has criticized Chevron deference for encouraging executive arrogance.
Should Courts Defer to Agency Litigating Positions?
How much deference should amicus briefs and agency advocacy receive from the courts?
Immigration Hardliners Lose Today in an 8-1 Supreme Court Ruling
The ruling also raises questions about the future viability of "Chevron deference."
Does Justice Kennedy Want to Restore Chevron's Domain? (Updated)
Justice Kennedy calls for reconsidering parts of the Court's Chevron jurisprudence.
Justice Kennedy Questions Chevron Deference
In a concurring opinion issued today, the Supreme Court's key swing vote justice expressed serious misgivings about a major Supreme Court precedent requiring courts to defer to executive branch administrative agencies.
When Is Agency Action Final for Purposes of Judicial Review?
In recent decision, judges on the U.S. Court of Appeals for the D.C. Circuit debate the finer points of finality under the Administrative Procedure Act.
