Like the velociraptors testing the perimeter of their enclosure in Jurassic Park, the Commodity Futures Trading Commission (CFTC) has begun probing the weaknesses in the statute that is supposed to fence the agency’s authority. The case of Monex Deposit Company v. CFTC gives the Supreme Court a chance to keep one such fence-testing effort contained. (Louis Carabini, the…

​When Justice Clarence Thomas dissented from the denial of certiorari last week in Howard and Karen Baldwin v. U.S., he lamented that “Brand X has taken this Court to the precipice of administrative absolutism.” Given that Thomas himself authored NCTA v. Brand X Internet Services in 2005, the case that launched the Brand X judicial deference doctrine, this turnabout…

Federal administrators must love Darth Vader’s iconic –and ominous– line, “I’m altering the deal. Pray I don’t alter it any further.” That’s because the Brand X deference doctrine lets them. Deference doctrines require judges to abdicate their duty of independent judgment and instead be biased in favor of government litigants and against non-government litigants. The 2005 Supreme…

President Trump’s two executive orders bring federal agency guidance out of the darkness and promote transparency and fairness. Peggy Little, senior litigation counsel with the New Civil Liberties Alliance, says they should be cheered by Americans across political divides. Nearly 20 years ago, the D.C. Circuit Court of Appeals invalidated “guidance” wielded as law by…

President Donald Trump just announced two executive orders to rein in unlawful administrative state action.  The first order declares that its goal is “to ensure that Americans are subject to only those binding rules imposed through duly enacted statutes or through regulations lawfully promulgated under them, and that Americans have fair notice of their obligations.” …

Despite the fact that the Constitution and Administrative Procedure Act prohibit the practice, federal agencies often engage in the commonplace tactic of issuing informal interpretations, factsheets, and other forms of “guidance,” to force compliance with a slew of “policy positions” that are not supposed to be legally binding. The agencies, in other words, use purportedly…