Sixth Circuit Puts Net Neutrality Rule on Ice
A three-judge panel concludes the rule's challenger are likely to succeed on the merits.
Administrative Law
Struggling with Standing
The Supreme Court's conservatives are not cutting conservative litigants any slack (and that's a good thing).
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.
The Federal Trade Commission Needs To Stay in its Lane
Recent actions by the FTC show that its officers should review the Constitution.
The DEA Wants To Ban Scientifically 'Crucial' Psychedelics Because People Might Use Them
The agency claims DOI and DOC have "a high potential for abuse" because they resemble other drugs it has placed in Schedule I.
Utah Joins Growing Number of States Ignoring Biden Admin's New Title IX Rule
The Biden administration says its new Title IX interpretation is a legitimate reading of the statute, but opponents characterize it as arbitrary and capricious.
The Authoritarian Side of Effective Altruism Comes for AI
Proposed bills reveal the extreme measures E.A.’s AI doomsayers support.
From "Deference" to "Respect"—The Real Import of Loper Bright
The decision to overturn Chevron removes an agency trump card, but does not instruct courts to ignore agency opinions--and they won't.
SCOTUS Will Decide Whether the FDA's 'Regulatory Switcheroos' on Vaping Were 'Arbitrary and Capricious'
The 5th Circuit ruled that the agency violated the Administrative Procedure Act when it rejected applications from manufacturers of flavored nicotine e-liquids.
Two SCOTUS Cases Show How an Unaccountable Administrative State Hurts 'Ordinary People'
Contrary to progressive criticism, curtailing bureaucratic power is not about protecting "the wealthy and powerful."
Why the End of Chevron Could Be a Win for Immigrants
“Immigration is an area of the law where the partisan alignments break down over Chevron.”
The Supreme Court's Decision Overruling Chevron is Important—But Less so than You Might Think
It won't end the administrative state or even significantly reduce the amount of federal regulation. But it's still a valuable step towards protecting the rule of law and curbing executive power.
SCOTUS Repudiates Doctrine That Gave Agencies a License To Invent Their Own Authority
The Court says Chevron deference allows bureaucrats to usurp a judicial function, creating "an eternal fog of uncertainty" about what the law allows or requires.
SCOTUS Stays Enforcement of EPA's "Good Neighbor" Air Pollution Rule (Updated)
In a 5-4 decision, the male justices side with the state and industry challengers and the female justices side with the Environmental Protection Agency
SCOTUS Rules SEC's In-House Handling of Securities Fraud Cases Violates the Right to Trial by Jury
The decision rejects a system in which the agency imposes civil penalties after investigating people and validating its own allegations.
Supreme Court Sends Message with Narrow Standing Holding in Murthy v. Missouri
Even if one thinks the federal government crossed the line in pushing more aggressive social-media-platform content moderation policies, plaintiffs must still satisfy the traditional requirements of Article III standing.
Critics Fundamentally Misconstrue the Supreme Court's Bump Stock Ruling
The case hinged on the ATF’s statutory authority, not the Second Amendment.
Abortion, Guns, and Hunter Biden.
Plus: A listener asks the editors about the Selective Service.
Divided Sixth Circuit Panel Affirms Preliminary Injunction Against Department of Education Title IX Guidance
The court concludes states are likely to succeed in their procedural challenges to the Education Department's decision to extend Bostock to Title IX.
Supreme Court Upholds the Rule of Law by Rejecting the Trump Administration's Bump Stock Ban
Six justices agreed that federal regulators had misconstrued the statutory definition of a machine gun.
Justice Thomas Takes Aim at Associational Standing
In his AHM v. FDA concurrence, Justice Thomas suggests the Court needs to rethink associational standing and questions whether it comports with Article III.
Unanimous Supreme Court Finds No Standing to Challenge FDA Regulation of Mifepristone (UPDATED)
Not a single justice was impressed by the unimpressive standing theories offered in Alliance for Hippocratic Medicine v. FDA.
Is the Clean Water Act Enforced Less Stringently in Battleground States?
A new study suggests political considerations may influence the enforcement of federal environmental law.
Did Environmental Groups Drop Challenges to SEC Climate Disclosure Rule Because They Lost the Lottery?
Green groups dropped their suits after the various challenges to the SEC's climate disclosure rule were consolidated in a fairly conservative circuit.
Is the Federal Property and Administrative Services Act Unconstitutional?
In an interesting dissent, Judge Allison Eid argues it violates existing nondelegation doctrine precedent.
Labor Board Goes After Amazon CEO for Suggesting Workers Might Be 'Better Off' Without Unions
The First Amendment applies even to the CEOs of successful companies, but the NLRB seems to disagree.
A Cruel and Risky Abortion Ban Versus an Overreaching Interpretation of Federal Law
There are no good sides in today's Supreme Court case concerning the EMTALA and abortion.
Will the FDA Adopt an Arbitrary and Capricious Ban on Menthol Cigarettes?
The research the FDA relies upon to claim banning menthol cigarettes would improve public health is not aligned with the agency's approach to tobacco regulation.
Department of Transportation Lacks the Authority to Require States to Set Greenhouse Gas Reduction Targets for Highways
A district court concludes that the Department of Transportation lacks the authority to force states to try and reduce greenhouse gas emissions associated with highway use.
Who Can Sue the Food and Drug Administration?
If doctors cannot sue the FDA for failing to restrict pharmaceuticals or other products, can anyone else? And if not, is this a problem?
Mifepristone in the Supreme Court—Comments on Oral Argument (Updated)
Live commentary on the Supreme Court oral argument in FDA v. Alliance for Hippocratic Medicine
Can Emergency Room Doctors Sue the FDA for Failing to Regulate Mifepristone More Aggressively?
The threshold issue in today's oral argument is Article III standing, and that issue should be determinative.
Supreme Court Shows Little Interest in Investigating Executive Power under the Antiquities Act
Yet another case that Justice Kavanaugh would like to hear that does not interest enough of his colleagues.
Solicitor General Takes Vaping to the Supreme Court
The Department of Justice is asking the Supreme Court to review the Fifth Circuit's Rejection of the FDA's "Surprise Switcheroo."
Does the Law of Standing "Need a Rewrite" After TransUnion?
Another federal appellate judge expresses discontent with current standing doctrine.
Does Anonymity Defeat Associational Standing?
The Second Circuit divides over whether an association must identify an injured member by name for the purposes of Article III. (Updated)
SCOTUS Ponders the Implications of Prosecuting Gun Owners for a Crime Invented by Bureaucrats
Several justices seemed troubled by an ATF rule that purports to ban bump stocks by reinterpreting the federal definition of machine guns.
Did Justice Jackson Disclose the Outcome in Relentless and Loper-Bright? (UPDATED)
Did we get a hint to the outcome in one of this term's bigger cases at today's oral argument?
Supreme Court Denies Red State Effort to Intervene in Mifepristone Case
The Court also rejects a late-filed amicus briefs from the American Bar Association, but accepts one from former FDA Commissioners.
Whether Chevron Stands or Falls, Any Deference Should Be Based Upon Delegation, Not Ambiguity
Some thoughts on the most important issue in Relentless and Loper Bright.
Video of Federalist Society "Seat at the Sitting" Panel on Upcoming Supreme Court Cases
The panel covered many cases and featured views many would not expect at a Fed Soc event.
BREAKING: Supreme Court to Consider Fifth Circuit's Abortion Pill Decision
The Court granted two petitions for certiorari seeking review of a controversial lower court decision limiting federal approval of mifepristone.
Supreme Court Dismisses ADA Tester Standing Suit as Moot
The Supreme Court's first decision of the term does not decide very much.
SEC v. Jarkesy and the Future of Agency Adjudication
An important challenge to the use of agency adjudication to enforce federal regulations.
Do You Still Have the Right to a Jury Trial?
The Supreme Court will consider whether federal agencies’ administrative judges violate the Seventh Amendment.
The Supreme Court Should Not Let Bureaucrats Invent Crimes by Rewriting the Law
The Trump administration’s unilateral ban on bump stocks turned owners of those rifle accessories into felons.
Supreme Court Denies Review of Social Cost of Carbon Challenge
The Court saw no reason to consider the Eighth Circuit's conclusion that the states lacked standing.
What If They Amended the Administrative Procedure Act and No One Noticed?
Congress made a small addition to the requirements for notice-and-comment rulemaking.
