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17 Aug 2018, 11:13 am
For the second time this week, a federal court has rejected the EPA's effort to delay an Obama Administration rule.Today, in Air Alliance Houston v. EPA, the U.S. Court of Appeals for the D.C. Circuit rejected the Trump Administration's attempt to delay the effective date of an Obama Administration rule. Specifically, the court held that the EPA's effort was both contrary to its statutory authority and arbitrary and capricious. This is the second time this week a federal court has… [read post]
16 Jul 2018, 3:31 pm
Judge Brett Kavanaugh has spent the past welve years as a judge on the U.S. Court of Appeals for the D.C. Circuit, the federal appellate court that hears the lion's share of legal challenges to major federal regulations. Of Judge Kavanaugh's nearly 300 opinions, over 100 concern questions of administrative law. Given this experience, should he be confirmed, Judge Kavanaugh would likely become one of the more influential voices on the Supreme Court of questions of administrative law. In a… [read post]
11 Jul 2018, 12:47 pm
In October 2013, Judge Brett Kavanaugh delivered the Sumner Canary Memorial Lecture at the Case Western Reserve University School of Law. In these remarks, which focused on the distinct nature and role of the D.C. Circuit and touched on broader questions of administrative law, Judge Kavanaugh reflected on the judicial confirmation process. Here's a taste: I think something is wrong in not just the confirmation process for our court but for lower courts more generally. A nominee's… [read post]
11 Mar 2018, 7:52 pm
In recent weeks there have been several controversies on university campuses over professors' use of offensive langauge in class. Princeton University professor Keith Whittington, author of the forthcoming book, Speak Freely: Why Universities Must Defend Free Speech, addresses these controversies in a post at "Academe," the blog of the American Association of University Professors (AAUP). Here's a taste: If professors are to lead students on intensive investigations of the… [read post]
2 Jan 2018, 7:33 pm
This Friday the Supreme Court will consider adding additional cases to what is already a loaded term. Among the cases the justices will consider is Raymond J. Lucia Co. v. Securities & Exchange Commission, a constitutional challenge to the manner in which the SEC has traditionally appointed its Administrative Law Judges. Lucia is the sort of case us Administrative Law nerds dream about. The prescise issue is whether SEC ALJs are "officers" under the Constitution (albeit "inferior… [read post]
19 Jan 2026, 7:26 am
[Great Moments in Twenty-First Century International Diplomacy] President Donald Trump apparently sent the following letter to prime minister Jonas Gahr Støre of Norway: Dear Jonas: Considering your Country decided not to give me the Nobel Peace Prize for having stopped 8 Wars PLUS, I no longer feel an obligation to think purely of Peace, although it will always be predominant, but can now think about what is good and proper for the United States of America. Denmark cannot protect that land… [read post]
9 May 2025, 6:32 pm
[How the phrase ended up in an opinion after it had been omitted.] The phrase "Homer nodded" appears four times in the U.S. Reports. The first time was in Justice Douglas' concurrence in Brandenburg v. Ohio (1969) (quoting Judge Learned Hand as it happens). The phrase would not appear in another Supreme Court decision until 1992's Lee v. Weisman, when Justice Souter included it in a footnote. Yet as Mark Tushnet recounts on Balkinization, while the phrase had been… [read post]
11 Apr 2025, 6:45 am
[A simple and quite symbolic presidential decree that symbolizes quite a bit, but accomplishes very little.] President Trump issued a flurry of additional executive orders and presidential memoranda this week, many of which concerned regulatory policy. One EO in particular, "Maintaining Acceptable Water Pressure in Showerheads," symbolizes much of what we are seeing from the early stages of Trump's second term. The EO sends a message, but might not quite do what the President wants or… [read post]
19 Mar 2025, 11:51 am
[The D. C. Circuit concludes that software cannot be the author of a work for copyright purposes.] The U.S. Court of Appeals for the D.C. Circuit waded into the question of whether software or A.I. can qualify as an author for copyright purposes. In Thaler v. Perlmutter, a unanimous panel concluded that such non-human entities cannot be authors. Judge Millett wrote for the panel, joined by Judge Wilkins and Senior Judge Rogers. Here is her summary of the case and decision: This case presents a… [read post]
11 Oct 2024, 10:59 am
Under the Magnuson-Stevens Act, Regional Fishery Management Councils are tasked with developing and revising fishery management plans to help ensure that offshore fisheries are utilized sustainably. A council's proposals are subject to approval and revision by the Secretary of Commerce, but councils retain the ability to block or veto certain actions by the Secretary. Council members are appointed by the Secretary of Commerce. After the Mid-Atlantic Council adopted a plan lowing the catch… [read post]
11 Oct 2024, 7:36 am
On May 9, 2001, President George W. Bush nominated Miguel Estrada to the U.S. Court of Appeals to the D.C. Circuit. If confirmed, Estrada would have been the first Latino to serve on this court, but it was not to be. At the time of Estrada's nomination, the Senate was split 50-50, leaving Vice President Dick Cheney as the tie-breaking vote. A few weeks later, Senator James Jeffords switched his party affiliation, handing Senate control to the Democrats, who refused to act on Estrada's… [read post]
10 Oct 2024, 7:22 pm
The Roberts Court has long been described as a "pro-business" court. News reports summarizing John Roberts' first term as Chief Justice described the Court as business friendly. A New York Times Magazine profile was simply labeled "Supreme Court, Inc." Activist groups tallied the win-loss record of the Chamber of Commerce, and academics published quantitative assessments purporting to show that the Supreme Court under Chief Justice Roberts was more sympathetic to business… [read post]
10 Mar 2024, 2:00 pm
[An "uncompromising" journal cancels an essay for failing to say the right things.] Guernica, a non-profit journal publishing work at the intersection of art and politics, published a powerful essay by a literary interpreter working in Israel and her experience in the wake of October 7 and the resulting war between Israel and Hamas. The essay, "From the Edges of a Broken World," by Joanna Chen, provides a first-hand account of how life has changed for the author. It is deeply… [read post]
12 Jan 2024, 2:26 pm
[The Fish and Wildlife Service inexplicably removes a species from its tally of species "delisted" under the Endangered Species Act.] It seems that a species that has been delisted as an endangered species has also been delisted from the official list of species that have been delisted. Here's the story (so far). While working on my forthcoming symposium article evaluating the first fifty years of the Endangered Species Act (ESA), I looked at the number of species that have been… [read post]
6 Oct 2023, 3:52 pm
[Is Common Good Constitutionalism anything more than politics by other means?] The University of Chicago Law Review has just published Brian Leiter's critique of Professor Adrian Vermeule's Common Good Constitutionalism. As you might expect, Leiter is not a fan. What is interesting is the extent to which this critique overlaps or intersects with those from the Right, such as that offered by Judge Bill Pryor. Here is the abstract: Adrian Vermeule proposes an alternative to… [read post]
21 Mar 2023, 3:38 am
[Is testimony over Zoom consistent with a criminal defendant's Constitutional rights?] The New York Times' Adam Liptak has an interesting "Sidebar" column on a case raising the question of whether a court's decision to allow a witness to testify over Zoom violated a criminal defendant's rights under the Confrontation Clause. In March 2021, a year into the coronavirus pandemic, a key witness in a criminal case in a federal court in New York was allowed to testify… [read post]
10 Jul 2022, 10:34 am
[The Supreme Court proclaimed this term that the Lemon test had been abandoned. Is this what is in story for Chevron?] In Kennedy v. Bremerton School District, the Supreme Court swept aside the fifty-year-old Lemon test (from Lemon v. Kurtzman) for evaluating Establishment Clause claims under the First Amendment on the grounds that the Court has "long ago abandoned Lemon and its endorsement test offshoot." Though never formally overruled, the Court has now recognized… [read post]
1 Jul 2022, 1:18 pm
[What should courts do when an agency action is based upon scientific evidence within the agency's expertise, but also implicates heightened scrutiny?] Federal courts are generally quite deferential to administrative agency conclusions about scientific matters within the agency's expertise. This is particularly true where the subject matter concerns questions on the frontiers of science, or in areas that are contested. Courts are not experts on the underlying scientific questions,… [read post]
15 Jun 2022, 7:16 am
[Justice Gorsuch has dissented from two-thirds of Justice Barrett's majority opinions this term.] Yesterday I noted that Justices Gorsuch and Barrett have repeatedly authored dueling opinions in the brief time they have been together on the Supreme Court. Today, it happened again. The first Supreme Court opinion released this morning was George v. McDonough, a concerning the retroactive effect of decisions invalidating Department of Veterans' Affairs regulations. Writing for the… [read post]
31 May 2022, 8:07 pm
[With thirty-three opinions in argued cases yet to issue, the Supreme Court is well behind the usual pace.] The Supreme Court issued orders today, denying certiorari in a raft of cases, temporarily staying the mandate of a Third Circuit decision in a Pennsylvania election dispute, denying a petition for a stay to prevent Texas legislators from having to testify in a voting rights suit, and (perhaps most notably) vacating the Fifth Circuit's stay of a district court order enjoining Texas's… [read post]
