I mentioned in a previous post that Progressivism has a curious definition of “democracy” that largely takes the form of unaccountable administrative agencies wielding enormous power to regulate people’s behavior. Perhaps the most extreme example of administrative power—the Independent Payment Advisory Board, or IPAB—is the subject of the latest constitutional challenge to Obamacare to be […]
Archive | Administrative Law
Should the FCC Actually Want Review of the Net Neutrality Opinion?
Let me go beyond yesterday’s post to ask a related question. The Commission may well file a petition for rehearing and/or certiorari in yesterday’s net neutrality decision. But if I were the FCC’s general counsel, would I actually want review of that decision? I think the answer is probably no. Here is how I would analyze […]
Winning and Losing in the Net Neutrality Decision
There is lots to chew on in the D.C. Circuit’s net neutrality opinion issued today. (Full disclosure: I worked on the order and legal defense when I was at the FCC, so apply whatever filters you deem appropriate.) There are a ton of interesting administrative law issues, which I plan to write about later. But […]
D.C. Circuit Rejects “Net Neutrality” Rule
Today, in Verizon v. FCC, the U.S. Court of Appeals for the D.C. Circuit vacated key portions of the Federal Communications Commission’s “Open Internet Order” — aka the net neutrality” rule. The court held 2-1 that that FCC has the authority to regulate broadband providers, and that such regulation may govern broadband providers’ handling of internet […]
More on the Legality of the Latest ObamaCare Fix
By Jonathan H. Adler on November 18, 2013 11:52 pm in Administrative Law, Health Care, Insurance Exchanges
Last Thursday, the President announced a change in Administration policy designed to ensure that those who like their health insurance plans will be able to keep them for at least one more year, despite the legal requirements of the PPACA and its implementing regulations. On Friday, I explained the President lacks the authority to waive […]
EPA Fares Well in D.C. Circuit
By Jonathan H. Adler on August 28, 2013 8:16 pm in Administrative Law, Environment, Judicial Nominations
As I noted here, some progressives argue that the U.S. Court of Appeals for the D.C. Circuit is engaged in a “judicial jihad against the regulatory state,” environmental regulations in particular. It seems someone forgot to tell the judges on the D.C. Circuit, for as Greenwire reports, the Environmental Protection Agency fares rather well in a […]
Is the D.C. Circuit a “Broken Circuit”?
Earlier this summer, the Environmental Law Institute’s Environmental Forum featured a cover story on the U.S. Court of Appeals for the D.C. Circuit by Doug Kendall and Simon Lazarus of the Constitutional Accountability Center entitled “Broken Circuit.” As the sub-head promised, this article made the case that “A new breed of activism on the Court […]
No Chevron Deference for Agency Interpretation of Court’s Jurisdiction
In Shweika v. Department of Homeland Security, the U.S. Court of Appeals for the Sixth Circuit confronted an interesting question: Should courts give Chevron deference to an agency’s interpretation of an ambiguous statutory provision that determines the scope of a federal court’s jurisdiction to review the agency’s action. In this case, Mazen Shwieka sought to challenge the U.S. […]
Durbin Amendment Decision — Good Law, Bad Policy
Last week, a federal district court threw out a regulation implementing the so-called Durbin Amendment to the Dodd-Frank financial sector reform law. This amendment imposes limits on the fees banks and other issuers may charge merchants for the use of debit cards. The amendment is bad policy, for reasons Todd Zywicki explained here. Likely because […]
NY appellate court rules 5-0 against Bloomberg soda ban
By David Kopel on July 30, 2013 2:02 pm in "Bullying" Bans, Administrative Law, Constitutional Law, Executive Branch, Food and Drink, Growth of Government, Health Care, New Class, Paternalism, Separation of Powers
The First Department of the Appellate Division of the New York Supreme Court has ruled 5-0 against NYC Mayor Michael Bloomberg’s soda ban, in the case of In re New York Statewide Coalition of Hispanic Chambers of Commerce, et al. v. The New York City Department of Health and Mental Hygiene, et al. (The Hispanic […]
FDA Must Bar Imports of Sodium Thiopental
Today the U.S. Court of Appeals for the D.C. Circuit affirmed a lower court decision requiring the Food and Drug Administration to block the importation of sodium thiopental for use in lethal injection because it has not been approved by the FDA. Here is how Senior Judge Ginsburg summarized the court’s holding in the conclusion […]
McConnell on the Obama Administration’s Decision to Delay the Employer Mandate
By Jonathan H. Adler on July 8, 2013 11:40 pm in Administrative Law, Health Care, Insurance Exchanges
In tomorrow’s WSJ, Stanford’s Michael McConnell has an op-ed discussing the constitutional implications of the Obama Administration’s decision to delay enforcement of the PPACA’s employer mandate. Article II, Section 3, of the Constitution states that the president “shall take Care that the Laws be faithfully executed.” This is a duty, not a discretionary power. While the […]
A Rare Non-Delegation Decision
On Tuesday, the U.S. Court of Appeals for the D.C. Circuit held in Association of American Railroads v. U.S. Department of Transportation that Section 207 of the Passenger Rail Investment and Improvement Act of 2008 constitutes an unconstitutional delegation of legislative authority to a private entity. Here is how Judge Janice Rogers Brown summarizes the […]
Fourth Circuit Voids NLRB Posting Rule
Yesterday, the U.S. Court of Appeals for the Fourth Circuit joined the U.S. Court of Appeals for the D.C. Circuit in invalidating the National Labor Relations Board “poster rule.” This rule required employers to post a notice of employee rights under the National Labor Relations Act on their properties and websites. In Chamber of Commerce […]
Supreme Court Holds Chevron Deference Applies to Scope of Agency Jurisdiction
Today, in Arlington v. FCC, the Supreme Court held 6-3 that courts should confer Chevron deference to agency interpretations of ambiguous statutory provisions concerning the scope of agency jurisdiction. Justice Scalia wrote for the majority. Justice Breyer filed an opinion concurring in part and concurring in the judgment. The Chief Justice dissented, joined by Justices Kennedy and […]