Time for a periodic reminder that the vast majority of executive orders are nothing more than gussied up memos asking subordinates to do stuff.

Most EOs lead with strong rhetoric, but close with a milquetoast instruction to act "as soon as practicable" or "as appropriate." That doesn't mean they're irrelevant. But the effect they have in the world will depend on the specifics of what federal agencies do in response. And we mostly don't know about those specifics.

Everyone's talking about the big Supreme Court case overturning Chevron.

But the two other admin law cases decided on Thursday are also huge deals.

Who will benefit from these cases? Who will be hurt? I've got an article in @TheAtlantic on that point. The three cases are doctrinally disparate. One is about when agencies interpret statutes. Another is about how agencies respond to comments that they receive. The third is a constitutional case involving agency enforcement.

But there is a common thread.

If you want to understand the dearth of conservatives in the academy, and what should be done to fix that, you should read Steve Teles's latest.

Steve starts with the fact that there's a lot of work, mostly from the left, about the perpetuation of group-based differences. The sheer weight of perception plays a role. If conservatives fear they're going to be discriminated against, they won't invest in going on the teaching market. That's true even if there's not much overt, intentional discrimination going on!

So Merck has sued the Biden administration over the drug negotiation provisions in the Inflation Reduction Act. What’s it arguing? And are those arguments any good?

The complaint is here: documentcloud.org/documents/2383… Merck has two main claims.

First, it says that Congress is “taking” its property—the drugs that it has patented and that it manufactures—by refusing to pay sticker price. And, under the Fifth Amendment, the government can’t take private property without “just compensation.

One very surprising implication of Judge O'Connor's opinion striking down the preventive services mandate? It may *expand* access to zero-dollar mammograms.

Seriously! /1 The most recent breast cancer screening guideline says that women 50+ should get a mammogram every two years. But for women 40 to 49, the current recommendation has a C rating -- which means insurers are free to impose cost-sharing. /2

This @nytimes story on Judge O'Connor's decision misses a key point. The decision only applies to PSTF guidelines issued *after 2010*.

Mammographies for women 50-74 were covered with a "B" rating in 2009, so no one's going to lose coverage for them. uspreventiveservicestaskforce.org/uspstf/recomme… Screening for heart disease? A B rating in 2003.
Pap smears? An A rating in 2008.
Tobacco cessation counseling? An A rating in 2009.

uspreventiveservicestaskforce.org/uspstf/recomme…

uspreventiveservicestaskforce.org/uspstf/recomme…

uspreventiveservicestaskforce.org/uspstf/recomme…

I've been fielding a bunch of questions about Judge O'Connor's decision on the preventive services mandate and, for the very curious, I'll answer a few of them here.

First, when does the decision take effect? Technically, immediately. But the government will surely appeal and ask for a stay pending appeal. Judge O'Connor, the Fifth Circuit, or the Supreme Court will likely enter a stay, though that is not a sure thing.

As expected, Judge O'Connor has struck down the Affordable Care Act's preventive services mandate. His decision applies nationwide. Reviewing the decision now; will highlight key portions as I read. /1 storage.courtlistener.com/recap/gov.usco… /2 This decision was not unexpected. Judge O'Connor had already ruled that the preventive services mandate was unconstitutional. This latest decision resolves the proper scope of relief.

1/ Niche thread here about technological change and the Fed Rules of Civ Pro, growing out of class:

Under Rule 32, you can use depositions at trial only under limited circumstances. They're considered hearsay and we've got a strong preference for live testimony. 2/ Historically, that strong preference made a ton of sense. Reading a deposition transcript from the witness stand is stultifying. Much better to have the witness present.