Betsy J. Grey argues nursing homes should be held accountable for failures to use mitigation measures during the COVID-19 pandemic.
Tyler B. Lindley dissects the tensions at play in the Supreme Court's doctrines of justiciability and remedies.
Lisa Schultz Bressman argues that Seila Law reveals protecting liberty and preventing abuse of power are the first principles of Chief Justice John Roberts' administrative law.
Jack M. Beermann contends that the Seila Law majority's distinction between multimember and single-headed independent agencies lacks legal and historical support and lays the groundwork for invalidating independent agencies altogether.
In remedying CFPB's separation-of-powers violation, Markham S. Chenoweth and Michael P. DeGrandis contend, the Seila Law Court worsened the constitutional defects in CFPB's funding structure.
Vice President Biden is considering elevating some White House offices to the Cabinet. But this change comes with complications.
Regulations, like other legal instruments, often arrive in lumps. An agency, for example, can issue a rule addressing many different subjects, each of which could be split off and issued as a separate regulation. Take, for example, a recently finalized proposed rule issued by the Environmental Protection Agency (EPA). In the agency’s own words, the … Continue reading Agency Lumping and Splitting by Jennifer Nou
Notice-and-comment rulemaking is often thought of as a fixed process: if agency X follows the process then it creates binding regulation Y. Yet, there is considerable variation in how the notice-and-comment rulemaking process actually proceeds. For instance, Trump’s Environmental Protection Agency allotted only 15 days for public comment on a recently proposed rule. This amount … Continue reading Taking Rulemaking Procedures Seriously in Bending the Rules by Rachel Augustine Potter
Litigants in our adversarial system must raise their best arguments or the court will find that the argument has been “waived” (or more precisely, “forfeited”). But what should courts do if an agency or a private party fails to raise Chevron deference during litigation about the lawfulness of agency action? In a forthcoming essay in … Continue reading Waiving Administrative Deference, by Jamie Durling & E. Garrett West