Posts Tagged ‘administrative law’

September 27 roundup

New: Cato Supreme Court Review (including me on gerrymandering and the Constitution)

On Monday the Cato Institute published its annual Cato Supreme Court Review for the 2017-18 Supreme Court term. Included is my 7,000-word article on the Supreme Court’s cases last term on partisan gerrymandering, Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland). Several people have told me that I managed to make a dry and complicated subject understandable and even entertaining, which I take as the highest compliment.

The entire CSCR is online, and here are its contents. I assisted in the editing of the pieces by Joseph Bishop-Henchman on the Internet sales tax case South Dakota v. Wayfair, and by Jennifer Mascott on the government-structure case Lucia v. SEC.

FOREWORD AND INTRODUCTION

The Battle for the Court: Politics vs. Principles by Roger Pilon
Introduction By Ilya Shapiro

ANNUAL KENNETH B. SIMON LECTURE

The Administrative Threat to Civil Liberties by Philip Hamburger

IMMIGRATION AND NATIONAL SECURITY

The Travel Bans by Josh Blackman

POLITICAL GERRYMANDERING

The Ghost Ship of Gerrymandering Law by Walter Olson

THE CRIMINAL LAW

Katz Nipped and Katz Cradled: Carpenter and the Evolving Fourth Amendment by Trevor Burrus and James Knight

Class v. United States: Bargained Justice and a System of Efficiencies by Lucian E. Dervan

THE FIRST AMENDMENT AND THE CULTURE WARS

Masterpiece Cakeshop: A Romer for Religious Objectors? by Thomas C. Berg

To Speak or Not to Speak, That Is Your Right: Janus v. AFSCME by David Forte

NIFLA v. Becerra: A Seismic Decision Protecting Occupational Speech by Robert McNamara and Paul Sherman

Regulation of Political Apparel in Polling Places: Why the Supreme Court’s Mansky Opinion Did Not Go Far Enough by Rodney A. Smolla

FEDERALISM AND GOVERNMENT STRUCTURE

Betting on Federalism: Murphy v. NCAA and the Future of Sports Gambling by Mark Brnovich

Internet Sales Taxes from 1789 to the Present Day: South Dakota v. Wayfair by Joseph Bishop-Henchman

“Officers” in the Supreme Court: Lucia v. SEC by Jennifer Mascott

NEXT YEAR

Looking Ahead: October Term 2018 by Erin E. Murphy

September 12 roundup

  • Peer-to-peer car sharing platforms could reduce the costs of car usage, unless elements of rental car industry manage to strangle it through regulation [Jonathan M. Gitlin, ArsTechnica on Illinois Gov. Rauner’s veto of a bill to cripple startups] Are we headed toward a legal requirement that cars be designed to sense that a driver has high blood alcohol and not function then? Does it matter whether the car is self-driving? [Nicole Gelinas]
  • “11th Circuit rages against ‘incomprehensible’ shotgun complaint, concludes lawyer’s intent was delay” [ABA Journal]
  • Quackery and bluster define the lawsuit filed by NY, MD, NJ, and CT attorneys general against Congress’s curtailment of state and local tax (SALT) deduction [Reilly Stephens; more, Howard Gleckman, Tax Policy Center]
  • “Conservative/Libertarian Faculty Candidates Are Hired By Law Schools Ranked 12-13 Spots Lower Than Equally-Credentialed Liberal Applicants” [James Cleith Phillips via Paul Caron/TaxProf]
  • Coming next week: I’m set to host and moderate a Sept. 20 forum at Cato in D.C. on the Indian Child Welfare Act. Featured are three lawyers who have been involved in high-profile ICWA litigation, Timothy Sandefur of the Goldwater Institute, Matthew McGill of Gibson Dunn, and Charles Rothfeld of Mayer Brown and Yale Law School [details and registration; event not livestreamed, but video to be posted later]
  • And now for something completely different: “Charles Evans Hughes and Chevron Deference” [Gerard Magliocca]

Awaiting a Supreme Court nominee

The White House has indicated that President Trump will announce a nominee for the Supreme Court vacancy Monday evening. Jonathan Adler breaks it all down at Volokh Conspiracy as does David Lat in a series of posts (sample: feeder judge Brett Kavanaugh “sends clerks to almost all the justices, on both sides of the aisle.”) Other resources while we wait:

  • Factually rich cheat sheet with links to writings and opinions of judges thought to be on the list [TIFIS]
  • The New Civil Liberties Alliance has evaluated the likely picks on the basis of their posture toward the powers of the administrative state. Chris Walker at the Yale Journal on Regulation examines related issues of their views on administrative law. And the Institute for Free Speech on records on free expression;
  • Judge Raymond Kethledge’s concurrence in the Cathedral Buffet case, with observations about government scrutiny of religious beliefs and the First Amendment’s Free Exercise Clause, is getting some attention. I wrote it up at the time here and at Cato at Liberty;
  • Hmm. “[Amy Coney] Barrett defended the Supreme Court’s current approach in cases dealing with economic regulation, in which the scales are tipped in favor of lawmakers via the highly permissive standard of judicial review known as the rational-basis test.” [Damon Root, Reason]
  • Ilya Shapiro has some kind things to say about another Sixth Circuit judge on many shortlists, Amul Thapar. What got my attention as a confirmed legal formalist is that Judge Thapar threw a case out of court for being one cent short of federal jurisdiction. As I argued way back in The Litigation Explosion, bright-line rules are generally a good thing and jurisdiction, especially, should not be subject to rules of close-enough. This recent Michigan Law Review piece by Judge Thapar and Benjamin Beaton, reviewing a new book by Judge Richard Posner has more on the virtues of formalism and is eminently worth reading;
  • Highlights of Kevin Cope’s ideological scoring of the judges for the Washington Post’s Monkey Cage: likely picks other than Thapar are clustered closely together, all less conservative than Justice Alito’s Third Circuit record when he was picked; Thapar gets a more moderate rating but his tenure as an appeals judge has been very brief. Note also that Merrick Garland, much promoted as centrist two years back, scores well to the left of the pre-appointment records of Ruth Ginsburg and Sonia Sotomayor.
  • You can listen to me briefly discussing the possibilities on the Hartford-area Ray Dunaway show here.

Keeping an overdue appointment with the Appointments Clause

Caleb Brown interviews Trevor Burrus and me for the Cato Daily Podcast on Lucia v. SEC, Thursday’s Supreme Court case on the Appointments Clause and administrative law. Crossing to join with the conservatives, Justice Elena Kagan wrote a narrowly tailored opinion invalidating the method by which the Securities and Exchange Commission had appointed its five administrative law judges at the time of the dispute (it has since fixed its appointment method). The majority opinion carefully sidesteps the issue of how ALJs may properly be removed; Justice Breyer, who largely concurred with the result on separate grounds, explored some of those issues in his opinion. See also Ilya Shapiro on June 21 as “government structure day” at the Supreme Court, and with more on the merits. Related: Federalist Society forum on Michael Rappaport proposal for replacement of ALJs with Article III judges.

Supreme Court roundup

  • After oral argument, case challenging agencies’ use of in-house administrative law judges (Lucia v. SEC) remains hard to predict [Ilya Shapiro, Cato; earlier]
  • In dissent from cert denial: “Justices Thomas and Gorsuch Argue for Rejecting Deference to Agency Interpretation of Agency Regulations” [Eugene Volokh, Ilya Shapiro and Matthew Larosiere on Garco Construction, Inc. v. Speer]
  • High court still gun shy [Trevor Burrus and Matthew Larosiere on refusal to review Maryland felon gun possession ban] Ninth Circuit ruling on zoning exclusion of firearms business deserves cert review [Shapiro and Larosiere on Teixeira v. Alameda County] Court denies cert in widely watched Defense Distributed First Amendment case on dissemination of plans for 3-D printed weapon [Smith Pachter, earlier] A historical look: “The American Indian foundation of American gun culture” [David Kopel]
  • “The Supreme Court’s grant of a Contracts Clause case for the first time in a quarter-century reminds me that a certain John G. Roberts wrote a student note on the Clause back in 1978 (available at 92 Harv. L. Rev. 86).” [Aditya Bamzai on Twitter]
  • University of Chicago Law Review special issue on Justice Scalia [Will Baude; other recent Scalia scholarship includes articles on his influence in implied rights of action and standing]
  • Case on cert petition before SCOTUS could clarify law on distribution of property after church schisms [Samuel Bray on Protestant Episcopal Church in the Diocese of South Carolina v. Episcopal Church]

Finally, rules to rein in agency guidance documents

Agencies use informal guidance documents in lieu of formal regulation to clarify and interpret uncertainties in existing law and enforcement. Unfortunately, this and other forms of “subregulatory guidance” can also offer a tempting way to extend an agency’s power and authority into new areas, or ban private actions that hadn’t been banned before, all without going through the notice and comment process required by regulation, with its protections for regulated parties. Fair? Lawful? The Department of Justice under Jeff Sessions has lately sought to bring agency use of guidance documents under better control, and in particular end the use of documents that 1) are obsolete, 2) improperly use the process to circumvent the need for formal regulation, or 3) improperly go beyond what is provided for in existing legal authority. I’m interviewed about all this by Caleb Brown for the Cato Daily Podcast.

More: Charlie Savage, New York Times (DoJ revokes batch of guidance documents), Matt Zapotosky/Washington Post; Scott Shackford, Reason (rescission of guidance letter on local fines and fees should be read not as blessing those practices as okay, but as reflecting fact that federal government lacks clear statutory or constitutional mandate to intervene against them); Stephen McConnell, Drug and Device Law (“DOJ Says its Litigators May Not Use Noncompliance with FDA Guidances as Basis for Civil Enforcement Actions”).

Administrative law roundup

Banking and finance roundup

November 22 roundup