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The Loper Bright/Relentless Promise versus the Realities of the D.C. Circuit’s Post-Loper Cases
Blogs
It has been almost a year and a half since the Supreme Court overruled Chevron, and its requirement that courts sometimes “defer to ‘permissible’ agency interpretations of” statutes. In doing so, the Supreme Court unqualifiedly stated that, “[i]n the business of statutory interpretation, if it is not the best, it is not permissible.” One would…
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Could Trump Tariffs Lose 9-0 at Supreme Court?
The Supreme Court heard arguments recently in a case seeking to overturn two lower court rulings that invalidated President Trump’s use of the International Emergency Economic Powers Act (IEEPA) to declare a national emergency or a threat to national security and impose trade tariffs. Although a reversal is unlikely, a decision in the president’s favor…
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When “General Welfare” Becomes a Blank Check: Why the Supreme Court Should Reexamine Congress’s Spending Power
Blogs
Does Congress actually have the power to spend? One looking only at the Constitution’s text would be hard-pressed to find any language that grants Congress a general spending power. Yet modern-day Spending Clause jurisprudence has given Congress an expansive spending power that cuts through other constitutional constraints. The Spending Clause, art. I, § 8,…
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7 Reasons SCOTUS Needs to Declare Humphrey’s Executor All Dead
Blogs
The United States Supreme Court will hold oral argument in early December in Trump v. Slaughter,to decide whether the President of the United States has the authority to remove a Commissioner of the Federal Trade Commission. In agreeing to hear the case on an expedited time frame, the high court also directed the parties to…
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Is the Administrative State Above the Law?
Blogs
“No one is above the law,” we say—“we” being those of a basically republican frame of mind, and “republican” being the belief (as relevant here) that governmental actors are those who exercise delegated authority with the majority consent of the governed, but who are otherwise no different from the rest of us. But who is…
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“Necessary” Discretion: A Primer for Non-Lawyers
It has been nearly a decade since Justice Elena Kagan summarized the judicial interpretation zeitgeist by noting that “[w]e’re all textualists now.”[1] And while it may be that textualism is a predominate form of statutory interpretation, and Congress is presumed to give words their plain meaning, those words—perhaps to the surprise of their drafters—are not always…
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