Chevron Doctrine

Liberal Judges Embrace Textualism

Why are these judges suddenly so enthusiastic about Justice Scalia’s approach to reading statutes?

Two of Trump’s major regulatory efforts were recently thrown out by the D.C. Circuit.  The liberal judges who wrote the opinions latched onto a conservative theory called textualism, which was most prominently advocated by Justice Antonin Scalia. While judges in an earlier era tried to interpret Congress’s intent in writing a law, textualists focus solely …

CONTINUE READING

Rethinking Presidential Administration

Giving the President more control of regulation has been a good thing — up to a point.

Conservatives love to complain about faceless bureaucrats, but blaming bureaucrats for regulations is hopelessly out of date.  When Elena Kagan was a professor, she wrote an article called “Presidential Administration.”  The article applauded her former boss Bill Clinton for seizing greater control of the regulatory process away from agencies. That trend has accelerated to the …

CONTINUE READING

Barrett on Standing & Judicial Deference

Her mentor was Scalia, but her style is more like Souter.

With the help of my research assistant, I’ve collected cases by Judge Barrett dealing with standing issues and deference to administrative agencies.  Both topics are very relevant to the environment.al crisis. You really can’t draw firm conclusions about her views on these doctrines, but you can draw conclusions about her style.  She sticks close to …

CONTINUE READING

The Kavanaugh Court and the Environment

A new appointment would make Justice Kavanaugh the swing voter.  Here’s what that would mean for environmental law.

A new appointment by Trump would shift the Supreme Court well to the right, making Brett Kavanaugh the swing voter in many cases. Kavanaugh has clear views about the powers of agencies like EPA. With him as the swing voter, the main strategy used by Obama to make environmental progress would be off limits for …

CONTINUE READING

Happy Birthday, Chevron Doctrine!

The Chevron doctrine has been a keystone of administrative law. But now it’s under siege.

Thirty-six years ago today, the Supreme Court decided the Chevron case.  The case gives leeway to agencies when their governing statutes are unclear or have gaps. It’s probably the most frequently cited Supreme Court opinion ever. But now the Chevron doctrine is under fire from conservatives, who used to be its strongest advocates. Here’s how …

CONTINUE READING

The Conservative Assault on Presidential Administration

Are they afraid of “faceless bureaucrats”? Or Democratic Presidents?

Conservatives are on a campaign to reduce agency discretion. They don’t seem to realize that in today’s world, that really amounts to an attack on presidential power.  These days, it’s generally not bureaucrats or even cabinet officers who make the real decisions about regulation. It’s the White House.  So the campaign against the administrative state …

CONTINUE READING

Pride Goeth Before a Fall

Trump thinks he can tell courts how to interpret NEPA. He’s wrong.

White House has just released its proposed revisions to the rules about environmental impact statements. The  White House Council on Environmental Quality (CEQ) simply does not have the kind of power that it is trying to arrogate to itself. The proposal is marked by hubris about the government’s ability to control how the courts apply the …

CONTINUE READING

A Paper Tiger?

Trump is proposing big changes to CEQ regs. But they may not matter.

The Trump Administration is trying to gut the current White House rules on environmental impact statements.  Some people view this move as a death blow to an important environmental tool. Here’s what Trump is trying to do and why it may not matter as much as people fear. As to what Trump & Co. are …

CONTINUE READING

The Witching Auer

The Supreme Court rules on deference to agency interpretations.

The Court’s opinion in Kisor v. Wilkie was eagerly awaited by administrative law experts.  It is one skirmish in the ongoing war over deference to agencies.  In this case, the issue was whether to overrule the Auer doctrine, which requires courts to defer to an agency’s reasonable interpretation of its own regulations.  This doctrine, like …

CONTINUE READING

Regulatory Reform: A Progressive Vision

A new Issue Brief provides practical proposals on how to improve regulation.

For over three decades, “regulatory reform” has been an aspiration chiefly for opponents of regulation.  Everyone agrees that regulation could be improved. But too many proposals for change are designed to undercut protection of the environment, public health, and civil rights. What would regulatory reform look like if you actually want to improve regulation rather …

CONTINUE READING

TRENDING