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Safari International Club v. Jewell: D.C. Circuit Hunts Down Agency’s Procedural Evasions of Judicial Review

Derek Lyons December 14, 2016
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The most remarkable thing about the D.C. Circuit’s recent opinion in Safari International Club v. Jewell is that there was any opinion at all. Its blackletter law holdings on standing, final agency action, and exhaustion are the type often found in unpublished decisions. Yet the case is interesting for two reasons. The first is the glimpse it gives into an agency’s willingness to make borderline frivolous procedural arguments to evade substantive judicial review. And the second is the unqualified rejection a panel of judges not known for their skepticism of the administrative state gave to them. As a result, the case is simultaneously distressing and refreshing. It is both a reminder of how procedural complexity can empower bureaucrats and of how panel composition is not necessarily outcome‑determinative in administrative law. [Read More]

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Separation of Powers, Essential to Liberty, Is Under Attack by John C. Eastman

Oversight or Abdication?

Daniel Epstein November 07, 2016
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For decades, scholars (and the public) have said that Congress has abdicated its oversight role and that the federal bureaucracy had too much discretion and was largely undeterred because legislative monitoring was so weak. At the end of the 20th century, scholars argued that Congress did not abdicate its oversight role but instead preferred to conduct oversight by responding to whistleblowers, interest groups, constituents and others who came forward with allegations of bureaucratic waste, fraud, or abuse rather than spend the time and energy to actively police each agency all the time. This distinction – between Congress responding to fire-alarms by whistleblowers versus actively police patrolling the bureaucracy – has largely been adopted by legal and political scholars.  [Read More]

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Texas Chapters Conference panels rundown

Merritt Lander September 28, 2016
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The Texas Chapter of the Federalist Society held its second annual chapter conference on September 17 in Austin, Texas. The theme of the weekend was “The Separation of Powers in the Administrative State.”

The Texas Attorney General Ken Paxton opened the event with vigor. He led with a well-received quip, stating that he “doesn’t mind living here in Austin, because it’s not that far from Texas.” He then went on to speak regretfully on the number of laws that continue to proliferate, and the incoherency of those laws. In conclusion, he said, “I’ll call agency deference what it is: unconstitutional.” [Read More]

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Capitol dome under construction

Roundtable at APSA 2016: Congress, Delegation, and the Administrative State

Timothy Courtney August 22, 2016
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The Federalist Society's Faculty Division will host a roundtable discussion, titled "Congress, Delegation, and the Administrative State," at the 2016 American Political Science Association's Annual Meeting in Philadelphia on September 2nd. We invite anyone planning to attend the conference to join us for what promises to be an excellent discussion featuring:

  • Lee Drutman, New America Foundation & The Johns Hopkins University
  • Gordon Lloyd, Pepperdine University & Ashbrook Center
  • Daniel H. Lowenstein, UCLA School of Law
  • Neomi Rao, George Mason University Antonin Scalia School of Law
  • Moderator: Michael Uhlmann, Claremont Graduate University

For full details and to read the panel abstract, click here.​ ​If you plan to attend, please email christopher.goffos@fed-soc.org to let us know.