The Chief's Loper Bright majority is very powerful and well done. (And I say that as one who did not think Chevron needed to be overruled to cure agency overreach.) Decision is grounded in history and text of the APA and powerfully deploys stare decisis doctrine. 1/ Opinion makes clear that statutory interpretation is for courts, and that includes respecting when a statute gives an agency policy discretion -- and that this was practice under APA for decades. 2/

The recent Yale Law School dust up reminds me of a similar controversy when I was an undergrad some decades ago and a group invited an official from the Nation of Islam to speak at YLS. 1/ Many students and others were justifiably upset given the speaker's history of anti-semitic remarks. Some even saw the speaker as threatening. /2

Divided Sixth Circuit dissolves stay against OSHA vax-or-test rule. As the Court is split 8-8 on this question, there will be no en banc petition. Next stop: One First Street. 1/

https://twitter.com/jadler1969/status/1471996310903562243

While a majority of the court's judges were unwilling to hear the case en banc, CJ Sutton took the opportunity to write a powerful opinion making the case for a stay on the grounds OSHA exceeded its statutory authority. /2

A quick response to the environmental policy aspects of "The Party of Nature," by @Vermeullarmine.
It's a provocative post, but one that contains internal contradictions and the seeds of its own failure were it ever attempted. 1/ Taken as more than an abstract statement , there is no way to operationalize its principles in a manner that is a) effective, and b) consistent with Vermeule's approach to administrative law. 2/

OSHA Emergency Standard mandating employers to require vaccination or testing for employees is out. Applies to all firms w/ >100 employees firm-wide, BUT exempts employees who don't report to workplace or work from home or outdoors.
osha.gov/coronavirus/et… Note that the way carve out works is that employer is still covered, but those employees are not. Further, OSHA said reason for 100 employee threshold is administrability, and will consider lowering after notice & comment. /2

Another example of reporting (and especially a headline) on educational legislation that misrepresents/misunderstands the substance of the legislation. tampabay.com/news/florida-p… The statutory language in question calls for surveying whether viewpoint diversity is tolerated and encouraged, not the ideological views of individual faculty or students. IOW, it is focused on things university administrators should be concerned about anyway.

Quick thread on Missouri's new gun rights law - ""Second Amendment Preservation Act." Parts of this law are nothing new, but parts are (in fact) quite problematic and unconstitutional 1/ The normal part is a state declaring that state officials will not help enforce disfavored federal laws. This is nothing new, and perfectly constitutional. It is well-established that states are not required to enforce federal law. 2/

Quick thread on the Congressional Review Act, because lots of folks seem to misunderstand how it works and how the elections affect the potential for its use. 1/ The CRA creates an expedited procedure for congressional repeal of recently adopted regulations. As such, it's an effective way to eliminate "midnight" regulations of prior administration because CRA resolutions aren't subject to filibuster, etc. 2/

Having dealt with Ohio 2004 election truthers for many years, I find the revisionism about Sen. Boxer and the 31 House members who voted to reject Ohio's electoral votes to be quite irksome. One reason is that many of the arguments we hear this year - alleged statistical anomalies, sinister tabulation machines, etc. - are the same arguments folks made about Ohio in 2004, it was just different people making the same (absurd) claims.

I share these greivances.
Water scarcity issues are better addressed through pricing and markets than through regulatory mandates.

https://twitter.com/CNNPolitics/status/1339216478789382145

Here's one piece on importance of water markets, particularly in the context of climate change. (Basically a shorter version of a few law review symposium pieces.)
papers.ssrn.com/sol3/papers.cf…

The various briefs responding to Texas have been filed and are available here: supremecourt.gov/docket/docketf…
The Georgia brief is particularly devastating, as it shows the factual failings and radical nature of Texas' brief. As the georgia brief shows, to accept Texas's arguments is to accept the idea that state legislatures do not, in fact, have the constitutional authority to determine the manner in which electors are selected if such manner allows for any administrative implementation.

This account of "hardball" over judicial nominations reads as if the author has never had a single conversation with someone from the other side on this issue. It skips from Bork to Obama, as if nothing else happened in 1980s, 1990s, and 2000s.
balkin.blogspot.com/2020/10/narrat… (It also makes errors, like claiming there were filibusters when there wasn't even a cloture vote, that all Obama circuit nominees were being blocked, etc.)

Roberts has Mazars. It's 7-2. Only Alito and Thomas dissent, BUT decision still reads like a loss for the House of Representatives, as all justices conclude lower courts were too quick to discount separation of powers concerns in the subpoenas.
supremecourt.gov/opinions/19pdf… What does this mean? Congress has the ability to investigate the President, but the drfit-net fishing expedition approach adopted by House (and defended by its attorneys) is a no go. Not a single justice - NOT ONE - defends House or lower court opinions.

In only decision released today, Supreme Court holds Trump Administration's recission of DACA is reviewable, and arbitrary & capricious under the APA. CJ Roberts writes for the Court.
supremecourt.gov/opinions/19pdf… Interestingly enough, Roberts also considers and rejects claim that DACA rescission violates equal protection because it was motivated by animus, but only Kagan, Ginsburg, and Breyer join that part of his opinion.

Justice Gorsuch has opinion in Bostock. (Title VII case.)
Rules for the plaintiffs. Title VII covers sexual orientation discrimination. #SCOTUS Folks are having difficulty downloading the opinions, which total 172 (!) pages in PDF
supremecourt.gov/opinions/19pdf…

The DC Circuit tossed the Emoluments Clause lawsuit filed by members of Congress. This should be no surprise. It was always the weakest of the emoluments cases. (more tweets to follows) The panel (correctly) concluded the members of Congress lack standing.
An early report is here: law.com/nationallawjou…

Despite its problems, the Fifth Circuit's severability analysis is a significant improvement over that of Judge O'Connor. While not resolving the question, it instructs O'Connor to focus on 2017 ACA - not 2010 - in conducting the analysis.

https://twitter.com/VolokhC/status/1207479923167772672

CA5 stresses "the need for a careful, granular approach" to severability analysis and notes it is "not persuaded that the approach to the severability question set out in the district court opinion satisfies that need."

The Endangered Species Act has been horribly ineffective at recovering species, so don't assume "weakening" existing regs is bad for conservation. Here's a @PERCtweets report supporting some of the revisions Interior announced today.
perc.org/2018/04/24/the…

It seems to me that some folks have adopted awfully broad (and problematic) definitions of "obstruction," and that these definitions could create problems for the practice of law. (brief thread) 1/ An essential part of an attorney's role is advising his or her client about their conduct and helping to ensure that clients engage in legal behavior. As a consequence, we should expect conversations in which clients suggest/urge illegal conduct to occur. 2/

It's increasingly hard to justify making students pay exorbitant casebook prices, so I decided to prepare my own materials for ConLaw this year. It's lots of work, but will save my students (collectively) over $15,000. 1/ Going without a casebook means less note material, and more lightly edited cases, but avoids the need to require a $250 casebook. I hope my students think that's a good trade (and I'd argue less case editing has pedagogical benefits of its own). 2/