Perils of Broad Presidential Power Over Tariffs
Donald Trump's plan for massive tariff increases is particularly dangerous because the White House could likely implement it without any new congressional authorization.
Nondelegation
En Banc Fifth Circuit Concludes FCC's "Universal Service" Fee Is Unconstitutional
A majority of the judges concludes this fee constitutes a tax, the authority for which is improperly delegated.
Is the Federal Property and Administrative Services Act Unconstitutional?
In an interesting dissent, Judge Allison Eid argues it violates existing nondelegation doctrine precedent.
SEC v. Jarkesy and the Future of Agency Adjudication
An important challenge to the use of agency adjudication to enforce federal regulations.
Of Babysitters and Major Questions
Survey data casts doubt on the textualist rationale for the major questions doctrine that I and others have advanced. But perhaps not as much doubt as it might seem.
Justice Barrett's Textualist Defense of the Major Questions Doctrine
In today's student loan decision, Justice Barrett offers a textualist rationale for this controversial rule. I have made similar arguments myself.
Federal Court Strikes Down Obamacare Preventive Care Insurance Mandates
The ruling is based on separation of powers and Religious Freedom Restoration Act grounds.
A Major New Defense of the Major Questions Doctrine
Legal scholar Ilan Wurman argues the controversial doctrine is justifiable on textualist and linguistic grounds.
A Federal Judge Says the DOJ's Sex Offender Registration Rules Violate Due Process by Requiring the Impossible
Justice Department regulations threaten people with prosecution for failing to register even when their state no longer requires it.
The Horseracing Case, Part 3: How Carter Coal Is Misunderstood
Despite a recent Fifth Circuit case, Carter v. Carter Coal Co. (1936) doesn't limit private delegations.
The Horseracing Case, Part 2: Private Delegation Before and After Schechter Poultry
The Supreme Court has never held that private delegations have any special unfavorable treatment under the Article I Nondelegation Doctrine: quite the opposite!
The Horseracing Case and How It Misunderstands Private Delegation
Despite a recent Fifth Circuit case, there is no private nondelegation doctrine.
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.
Yale Journal on Regulation Symposium on Peter Shane's "Democracy's Chief Executive"
Participants include Daniel Farber, Keith Whittington, Cristina Rodriguez, Lisa Heinzerling, and myself, among others.
The First Significant Lawsuit Challenging Biden's Student Loan Forgiveness Plan [Updated]
It was filed by Pacific Legal Foundation public interest lawyer Frank Garrison, and includes a novel strategy for getting around the problem of standing.
Originalism and the "Major Questions" Doctrine
Originalist legal scholars Mike Ramsey and Mike Rappaport debate whether the major questions doctrine - an important theory underlying several recent Supreme Court decisions - can be squared with originalism or not.
The Good, the Bad, and the Ugly of Jarkesy v. SEC
Assessing an aggressive Fifth Circuit opinion declaring Securities & Exchange Commission proceedings unconstituional.
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
Supreme Court Ruling in "Remain in Mexico" Case is a Win for Biden, Migrants—and Fans of Presidential Power
The ruling likely allows end of a cruel policy - but also reinforces broad presidential control over immigration.
The DOJ Says a Man Whose Record Was Expunged Still Must Register As a Sex Offender, Which Is Impossible
A federal lawsuit argues that the department's regulations violate due process, the separation of powers, and the First Amendment.
If the CDC's Mask Mandate Is 'Necessary for the Public Health,' Why Didn't the DOJ Seek a Stay To Restore It?
The Biden administration's main priority seems to be leaving the agency's authority vague enough to allow future interventions.
The DOJ Is Reluctant To Continue Defending the CDC's Mask Mandate Because It Worries It Will Lose Again
Clarifying the agency's authority could impede future power grabs.
My New Article on "Nondelegation Limits on COVID Emergency Powers: Lessons from the Eviction Moratorium and Title 42 Cases"
The eviction moratorium and Title 42 "public health" expulsion cases have many parallels that may have been ignored because of their differing ideological valence. Both strengthen the case for nondeferential judicial review of the exercise of emergency powers.
DC Circuit Issues Mixed Decision in Title 42 "Public Health" Expulsion Case
The court ruled the CDC can continue to use its public health power to expel migrants, but not to countries where they are likely to face persecution or torture.
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.
Hamburger v. Parrillo on the Nondelegation Doctrine
An interesting exchange on the implications of early agency power to revise tax assessments.
Does the Supreme Court Have Jurisdiction to Hear West Virginia v. EPA?
The Solicitor General and NGO respondents argue that the petitioners lack appellate standing to challenge the D.C. Circuit's interpretation of the Section 111 of the Clean Air Act.
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.
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?
Amicus Brief in Title 42 "Public Health" Expulsion Case
I wrote an amicus brief on behalf of the Cato Institute, addressing the important nondelegation and "major questions" issues raised by the federal government's awful policy.
The CDC's New Eviction Moratorium Has Virtually all the Same Flaws as the Old
It still covers some 90% of the country, and still rests on a theory of virtually limitless CDC authority. Even President Biden acknowledges the order is legally dubious.
Eviction Moratoria and Nondelegation
Thank goodness for small blessings in a public health emergency?
Thoughts on the Sixth Circuit Ruling Against the CDC Eviction Moratorium
The ruling is unsurprising. But it does further strengthen the case against the moratorium, and increases the odds the issue might eventually make it to the Supreme Court.
Sixth Circuit Concludes CDC Eviction Moratorium Is Unlawful
The Sixth Circuit's decision is at odds with that of the D.C. Circuit, and features a Judge Thapar concurrence on delegation.
Federal Court Enjoins Enforcement of "Tax Mandate" Barring States Receiving COVID-19 Funds from Cutting Taxes (Updated)
In a careful ruling, Judge Cole concludes Ohio made its case, and enjoins enforcement of the mandate against Ohio.
Supreme Court Refuses to Vacate Stay of Order Invalidating CDC Eviction Moratorium
The Court lets the CDC's eviction moratorium remain in place, even though a majority seems to believe CDC's action is unlawful.
CDC Eviction Moratorium Extended Again
The latest extension, which is expected to the be last, runs until July 31. Meanwhile, the legal battle over the moratorium will continue. And the plaintiffs' position is likely to be strengthened by the Supreme Court's recent ruling in Cedar Point Nursery v. Hassid.
A Badly Flawed DC Circuit Ruling in Favor of the CDC Eviction Moratorium
The dubious decision breaks a streak of wins for plaintiffs challenging the legality of the CDC order.
A Potential Way Forward for Nondelegation Concerns
Focusing on time and the "nondelegation baseline" would be one way to constrain excessive delegation.
Yet Another Federal Court Rules Against the CDC Eviction Moratorium
This ruling has some distinctive elements, and may have a broader impact than previous decisions.
Nondelegation Doctrine Lessons from State Experience
Two recent papers examine the state experience with nondelegation.
Biden Lets Trump Work Visa Ban Expire
The decision opens the door to numerous immigrant workers, and moots out ongoing litigation against the Trump policy.
First Appellate Court Ruling on CDC Eviction Moratorium Goes Against the Government
A unanimous Sixth Circuit decision upheld a lower court ruling holding that the moratorium is illegal.
Biden Administration Extends CDC Eviction Moratorium Until June 30—the Legal Battle Over it Will Continue
The new order is similar to the old, but includes an extensive section defending the measure on public health grounds.
Another Federal District Court Rules Against CDC Eviction Moratorium
This is the third court to rule that the moratorium is illegal. Two decisions have upheld it.
Federal District Court Rules Against CDC Eviction Moratorium
There are now two district court decisions ruling against the moratorium and two upholding it.
The State of the Legal Struggle Over the CDC Eviction Moratorium
Two district court decisions have upheld the moratorium against various challenges, while one has ruled against it. The legal battle may be just beginning.
Biden Revokes Trump's Coronavirus Immigration Bans [Updated with a correction]
This action brings to an end a period when the US was more closed off to legal immigration than at any other time in the nation's history.
