This year’s eight-member court may reach different outcomes than had formerly been expected in Friedrichs v. California Teachers Association, the public employee union dues case; the Obamacare religious exemption cases including Little Sisters of the Poor v. Burwell; and Fisher v. Texas, the affirmative action case, among others. Also diminished: the chance that the Court will overturn its doctrine of “Auer deference” to agencies’ interpretations of their own regulations, a doctrine laid out by Scalia himself which he later came to reconsider [Adam Gustafson, Washington Examiner] Plus the trio of class action cases, the challenge to the EPA’s coal-throttling Clean Power Plan, and much more [Daniel Fisher, Forbes] (& welcome Wall Street Journal Law Blog readers)
Posts Tagged ‘administrative law’
“Time to Rein in Judicial Deference to Executive Agencies”
The Seventh Circuit case we wrote about in October, on whether a federal agency is entitled to deference in how it interprets the legal scope of its own regulations, is now before the U.S. Supreme Court on a petition for certiorari review. Ilya Shapiro and Randal John Meyer explain why the Cato Institute has joined a brief urging the Court to take up the case of United Student Aid Funds v. Bible. [Cato at Liberty; more on so-called Auer deference]
Justice Scalia’s jurisprudence
Scalia for the general reader: my new piece briefly explains his textualism, originalism, and rules jurisprudence [American Media Institute Newswire, syndicated] And in a new Cato Podcast, Caleb Brown interviews Tim Lynch and me about the Justice’s legacy in the areas of criminal law, regulation, and administrative law:
In his long battle against vagueness in defining crimes, Justice Antonin Scalia was a true hero of liberty and the rule of law. Harvey Silverglate discusses that here.
December 23 roundup
- Russian man sues developer of videogame Fallout 4, saying he lost wife and job due to addiction to playing it [BGR]
- “Indiana Briefly Considered Fining Bad Anthem Singers” [Lowering the Bar] Relatedly, if you’ve been wanting to do a dance remix of “Star-Spangled Banner,” Michigan law now permits it [Lowering the Bar]
- Is administrative law unlawful? Philip Hamburger vs. Adrian Vermeule [more, William Funk/Jotwell and David Bernstein; earlier here and here]
- Will Louisiana Attorney General Buddy Caldwell runoff loss end his office’s contracts-for-pals “Buddy System”? [Chris Butler/Louisiana Watchdog, Richard Miniter, American Media Institute/Louisiana Record, Eric Boehm/Louisiana Watchdog]
- “Let’s get rid of private housing.” The Nation never gives up, does it?
- Congress’s surrender of power of purse opened door to outrages like Department of Justice’s activist slush funds [Randal John Meyer]
- Gun-rights and marijuana advocates set themselves against liberty generally when they back discrimination-law coverage of employee “off-duty conduct.” [Ohio, Jon Hyman first (firearms) and second (pot) posts]
Supreme Court and constitutional law roundup
- Supreme Court agrees to review CRST Vans Expedited v. EEOC (Eighth Circuit) on standard for prevailing-party fee awards in EEOC cases, could mean help for defendants against overzealous government lawyering (and thanks for quote) [Sean Higgins, Washington Examiner, earlier here and here]
- 6-3 win for arbitration and freedom of contract in DirecTV case [Deborah LaFetra/PLF, Daniel Fisher, ABA Journal] WSJ editorial: Bravo to Justice Breyer for upholding as precedent what he’d earlier dissented from on substance [Texans for Lawsuit Reform reprint]
- OK to choke off legal defense by freezing all assets before trial, even if not criminally obtained? [Radley Balko]
- South Carolina $124 million penalty against Risperdal maker should be recognized as violating Excessive Fines clause [Ilya Shapiro and Randal John Meyer, Cato]
- “Supreme Court will review state laws making it a crime to refuse blood-alcohol tests” [ABA Journal, Reason]
- Helpless against the administrative state: revisiting SCOTUS’s awful 1944 Yakus case [James Conde and Michael Greve, SSRN via Michael Greve, Law and Liberty]
- New Akron Law Review symposium on class action jurisprudence of Roberts Court [Paul Karlsgodt]
Free speech roundup
- Venezuela files suit in U.S. against American website, Dolar Today, that is critical of its currency policies [George Selgin]
- Michigan: “Felony prosecution for distributing pro-jury-nullification leaflets outside courthouse” [Eugene Volokh, earlier here, here, etc.] More: Judge tosses Denver D.A.’s attempt to jail jury nullification pamphleteers [Jacob Sullum, earlier]
- Federal agencies should not get to decide for themselves whether they’re violating the First Amendment [Ilya Shapiro, Cato on cert petition in POM Wonderful v. Federal Trade Commission]
- “After all, a wall can be built around many things, but not around the First Amendment.” One election lawyer’s response to cease/desist letter from Donald Trump [Chris Cillizza/Washington Post, letter courtesy Politico]
- Court in Turkey considering a doctor’s comparison of Turkish President Erdogan with “Lord of Rings” character Gollum, and the results are preciousss [Sarah McLaughlin, Popehat]
- Update on climatologist Michael Mann’s defamation suit, still in progress [Jonathan Adler, earlier]
- Attacks on the right to speak one’s mind are multiplying. Would better civics education help? [George Leef, Forbes]
EEOC’s use of “administrative subpoenas”
No warrant needed: “administrative subpoenas” or “civil enforcement demands” allow the Equal Employment Opportunity Commission and other federal agencies to demand “everything from Social Security numbers to medical records without a judge’s prior approval, so long as the information is “relevant” to the agency’s work.” Courts have allowed the maneuver although it bypasses the protections of the Fourth and Fifth Amendments. [Kathryn Watson, Daily Caller]
How late the Auer
“Auer deference,” announced by the U.S. Supreme Court in Auer v. Robbins (1997), requires courts to accord deference to a federal agency’s interpretation of its own statute. The U.S. Department of Education, contradicting some earlier statements, has lately taken the view that “collection costs may not be assessed against [student loan] borrowers who sign rehabilitation agreements,” thus turning unlawful in retrospect thousands of instances in which lenders have done that. The Seventh Circuit has now denied en banc rehearing in the case of Bryana Bible v. United Student Aid Funds, which — invoking Auer deference — let a suit go forward on that theory. Judge Frank Easterbrook, concurring in that denial of rehearing en banc (h/t Ted Frank), noted that Supreme Court justices including Auer’s original author have lately expressed doubts about the doctrine’s ongoing viability. Easterbrook:
…deference has set the stage for a conclusion that conduct, in compliance with agency advice when undertaken (and consistent with the district judge’s view of the regulations’ text), is now a federal felony and the basis of severe penalties in light of the Department’s revised interpretation announced while the case was on appeal.
Federal court: SEC cannot use employees as judges
The Securities and Exchange Commission practice of trying many complaints before administrative law judges (ALJs) who are its own employees, rather than before federal courts, has grown increasingly controversial lately and now one defendant’s challenge to the practice has prevailed — at least for the moment. A federal judge in Atlanta has ruled that because ALJs are “inferior officers” under the constitution, they cannot be simply employed like other federal workers by an agency like the SEC. Writes Thaya Knight at Cato, “there is a fairly easy fix available to the SEC: the five commissioners can simply appoint the existing ALJs to their current positions…. [but] other agencies could face greater difficulties.” But Daniel Fisher quotes Prof. Philip Hamburger as saying the ruling could still prove “profoundly important,” leading to the unraveling of other aspects of administrative law arrangements within agencies. More: W$J (commission fighting off at least seven legal challenges; in one instance it “asked one of its own judges to submit a formal statement about whether he has ever felt pressure to favor the agency”), Adam Zimmerman/PrawfsBlawg.
Beyond the U. Va. scandal: will courts disallow feds’ rule by “Dear Colleague” letter?
The crackdown on college grievance procedures by the U.S. Department of Education’s Office for Civil Rights (OCR) paved the way for such developments as the administrative panic at the University of Virginia following Rolling Stone’s bogus assault article. I’ve got some thoughts at Cato about how the OCR crackdown grows out of a type of federal agency power grab — rule by “Dear Colleague” letter, sometimes known as sub-regulatory guidance or stealth regulation — that did not begin with this issue. As federal agencies have learned how to wield broad regulatory power without having to go through the formal regulatory process with its legal protections for affected parties, the courts have begun to apply skeptical scrutiny — which could open up one avenue of challenging the federal guidelines. Earlier on subregulatory guidance/stealth regulation here, here, etc. More: related from John Graham and James Broughel, Mercatus.