Department of Homeland Security
The Headless Department of Homeland Security
The lack of Senate-confirmed officers at DHS is a serious problem.
Administrative Law
Chamber of Commerce and Other Employer Groups File Lawsuit Challenging Trump's Employment Visa Ban
The lawsuit raises a variety of important issues, including a nondelegation challenge. It could turn out to be a very significant case.
A Big Day for Religious Liberty at the Supreme Court
On the penultimate day of the October 2019 term, the Supreme Court expands the ministerial exception and upholds exemptions to the contraception coverage mandate.
Supreme Court Reaffirms Traditional Severability Principles in Barr v. AAPC
In a decision considering federal limitations on robocalls, the Supreme Court reaffirmed its longstanding approach to severability.
En Banc D.C. Circuit Delivers Big Win for Landowners
The U.S. Court of Appeals for the D.C. Circuit rejects a procedural trick used by FERC to avoid judicial review.
When One Federal Agency Sues Another in Federal Court
If the U.S. Postal Service and the Postal Regulatory Commission disagree, does the case belong in federal court?
Did John Roberts Just Put an End to Remand-Without-Vacatur?
Professor Christopher Walker explores a potential wrinkle in the DACA decision.
Was the DACA Decision "Deliberately Designed for One Day and Case Only"?
Professor Zach Price on the Chief Justice Roberts' Decision in Dept. of Homeland Security v. Regents of the University of California
Supreme Court Holds Trump Administration Rescission of DACA Was "Arbitrary and Capricious" (Updated)
In what appears to be a quite narrow ruling, Chief Justice John Roberts holds that if Trump wants to get rid of DACA, he'll have to try again.
D.C. Circuit Rejects Trump Administration's Drug Price Disclosure Rule
A unanimous panel concludes the Department of Health and Human Services Lacked Statutory Authority to Impose the Rule
Court Enjoins Enforcement of "Stay Safe Ohio" Order Against Gyms
A local judge has concluded the State Health Director likely exceeded her powers under the Ohio Constitution
A Nondelegation Challenge to Trump's Border Wall
An under-the-radar environmental lawsuit could provide the Supreme Court another opportunity to revive the nondelegation doctrine.
Justice Thomas Takes Aim at State Standing
In a brief exchange during a recent oral argument, the Justice suggested the Court should reconsider giving states "special solicitude" under Massachusetts v. EPA
The Penalty-less Individual Mandate Is Severable from the Rest of the ACA No Matter How You Look at It.
We submitted another strange bedfellows amicus brief on severability in the Texas ACA case.
DoD vs. FCC
Why does it matter is a federal agency is independent of Presidential control? Ask the Department of Defense.
Will the Trump Administration Finally Abandon Its Bizarre Position in the Texas ACA Case? (Update: No)
CNN reports that Attorney General Barr is (again) voicing opposition to DOJ's argument that zeroing out the mandate penalty should upend the entire law.
Is Administrative Law Immoral?
A review of Richard Epstein's latest book: The Dubious Morality of Modern Administrative Law
Make an Anti-Union Joke, Prepare to Be Accused of an Unfair Labor Practice
The NLRB's prosecution of a conservative journalist should be worrisome.
Reviving Congressional Reauthorization
A Symposium at The Regulatory Review engages with "Delegation and Time," and the question of whether Congress is capable of addressing nondelegation concerns.
SCOTUS Denies Certiorari in Bump Stock Case (But Justice Gorsuch Blasts Lower Court's Reasoning)
A high-profile gun case actually presents meaty questions of administrative law
Red State Challenge to Affordable Care Act Goes to SCOTUS (But the Arguments Remain Incredibly Weak) (Updated)
Today's cert grant is based on the importance of the case, not the quality of the arguments
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.
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.
