Category Administrative Law

Is the “Auer” at Hand to Reconsider Seminole Rock Deference?

Regular readers may recall an essay I posted a few months back, which I wrote for the Pacific Legal Foundation’s law student writing competition. In that essay, I discussed the administrative law doctrine known as Auer (or Seminole Rock) deference, and I highlighted recent calls for reconsidering or abrogating the doctrine. As I stated there: […]

Third Circuit Judge Rails Against Chevron & Auer Deference

Add another federal judge to the growing chorus of individuals concerned that the Court’s administrative law jurisprudence has gone off the rails. Egan v. Del. River Port Auth., — F.3d —, 2017 WL 1055568 (3d Cir. Mar. 21, 2017) involved discrimination and retaliation claims an employee brought against the Port Authority, alleging violations of federal law […]

END THE FAILED AUER EXPERIMENT NOW*: THE FLAWS OF DEFERRING TO AGENCY INTERPRETATIONS OF THEIR OWN AMBIGUOUS REGULATIONS**

  Introduction Imagine a hapless individual, forced to participate against her will in a game over which participants must wager significant sums of money. The rules of the game are complex and arcane, and this individual is unfamiliar with them. Her competitor, however, is savvy and experienced, having played this game many times in the […]

Hit & Run – Trump, Liberals, and Separation of Powers

Back in June, I argued “The Contrarian Case for a Trump Presidency.” While it doesn’t really read as a ringing endorsement, I argued that a President Trump was preferable to a President Clinton because executive power was already out of control, and a Clinton Administration would make matters worse in that regard while a Trump Administration […]

Checks and Balances: An Election Eve Plea

If you are one of the 90ish% of Americans who will be voting for Team D or Team R tomorrow,* this is mostly addressed to you. Tomorrow, our long national nightmare is just beginning, whoever wins over. Election returns will start coming in, and – unless Utah gives us the most unlikely upset in American history (or […]

Paternalistic Justifications for Regulation – “Laws for Thee but not for Me”

“You don’t know what’s for your own good.” That, in essence, sums up the justification underlying a fair amount of command-and-control regulation. Individuals, on their own, are not capable of acting in their own true self-interest. Government, having the benefit of the collective wisdom of the masses, is in a better position to look out […]

The Myth of Expert Administration

Friedrich Hayek opened his formative essay “The Use of Knowledge in Society” with a critical question: What is the problem we wish to solve when we try to construct a rational economic order? To be sure, he is not asking about why we form society. If he were, the answer might be a Lockean response […]

A Government of Laws and Not of Men – The Contrarian Case for a Trump Presidency

Don’t clutch your pearls just yet. I have, since the start of this election cycle, vehemently opposed Donald Trump, and still do, along with most all of my ideological co-religionists. I believe that Donald Trump is little more than a narcissistic, egotistical, self-promoting strongman who is undeserving of the office of the Presidency, being more […]