Volume 92, No. 5

The Ordinary Questions Doctrine

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23 Oct 2024
In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled Chevron as inconsistent with the Administrative Procedure Act (“APA”), which requires courts to decide “all relevant questions of law” and therefore prohibits them from deferring to agency interpretations because the relevant statutory language is ambiguous. A different approach now governs judicial review of the countless routine, often specialized questions of statutory interpretation that agencies answer in the normal course of implementing their statutes—the “ordinary” questions.

On the Docket

Previews for the 2024 October Term of the Supreme Court

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09 Oct 2024
As the 2024 Supreme Court term gets underway, several pivotal cases are set to challenge and refine existing legal precedents across a wide range of issues. From questions about federal authority and constitutional rights to crucial interpretations of criminal law, the following case previews provide a glimpse into the issues the Court will tackle and their broader implications for the legal system. Delligatti v. United States No. 22-448, 2d Cir. (Argument Nov 12, 2024) Preview by Jordan Morris, Associate In Delligatti v. United States, No. 23-825, the Supreme Court will address whether attempted second-degree murder in violation of the Violent Crimes in Aid of Racketeering (“VICAR”) statute, 18 U.S.C. § 1959(a)(5), qualifies as a crime of violence under 18 U.S.C. § 924(c)(3). In other words, the Court will grapple with whether crimes that require proof of bodily injury that may be committed by failure to act necessarily include the use of physical force such that they are violent crimes. This case arose from the murder scheme organized by Petitioner Salvatore Delligatti, an associate of the Genovese Crime Family (“Family”) of New York. Petitioner accepted money to coordinate the murder of Joseph Bonelli,...
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United States v. Rahimi: Resisting the “Suicide Pact” For Now

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13 Aug 2024
August 13, 2024 United States v. Rahimi, 602 U.S. ___, No. 22-915 (June 21, 2024) Response by Professors Mary Anne Franks and Joan Meier Geo. Wash. L. Rev. On the Docket (Oct. Term 2023) Slip Opinion | SCOTUSblog United States v. Rahimi: Resisting the “Suicide Pact” for Now In 1949 and again in 1963, Supreme Court Justices cautioned against treating the Constitution as a “suicide pact.” The Fifth Circuit tossed this warning aside last year when it ruled that the Constitution forbids the federal government from disarming dangerous domestic abusers subject to civil protection orders. Fortunately, the Supreme Court reversed this decision in United States v. Rahimi, rejecting the view that firearms laws that did not exist in some form at the time the Second Amendment was ratified are necessarily prohibited by the Constitution. Had the Court affirmed the Fifth Circuit, it would have meant the end of virtually all modern firearms regulation—a deadly conclusion in a country where guns kill approximately 40,000 people each year and where gun violence has become the leading cause of death of children and teenagers. But while firearm fundamentalists may have lost this particular...
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SEC v. Jarkesy: Agencies Cannot Adjudicate Most Civil Penalty Disputes

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10 Jul 2024
July 10, 2024 SEC v. Jarkesy, 603 U.S. ___, No. 22-859 (June 27, 2024) Response by Professor Richard Pierce Geo. Wash. L. Rev. On the Docket (Oct. Term 2023) Slip Opinion | SCOTUSblog SEC v. Jarkesy: Agencies Cannot Adjudicate Most Civil Penalty Disputes The Securities and Exchange Commission (SEC) has long had the power to bring an enforcement action in court to obtain a civil penalty against someone who commits securities fraud. In the Dodd-Frank Act of 2010 Congress gave the SEC the option of either bringing a civil fraud penalty action in court or assigning one of its administrative law judges (ALJ) to adjudicate a civil fraud dispute, subject to review by the SEC and a circuit court. The SEC assigned an ALJ to adjudicate its claim that Jarkesy had committed securities fraud and to decide whether to impose a civil penalty on him. The ALJ found that Jarkesy had committed securities fraud and imposed a large civil penalty on him. The SEC upheld the ALJ’s decision, and Jarkesy sought review of the SEC decision in the Fifth Circuit. The Fifth Circuit held that the SEC adjudication violated the...
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Fischer v. United States: A Supposedly Textualist Court Ignores the Text

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09 Jul 2024
On January 6, 2021, Trump supporters attacked the U.S. Capitol to disrupt the certification of Joe Biden's election victory. In Fischer v. United States, the Supreme Court controversially ruled that these actions did not violate the law against obstructing official proceedings. Professor Eliason argues this decision contradicts both the statute's plain language and common sense.

Loper Bright Enterprises v. Raimondo: Chevron is Dead; Long Live Skidmore

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08 Jul 2024
Professor Pierce discusses the Supreme Court's landmark decision in Loper Bright Enterprises v. Raimondo, which overturns the Chevron deference doctrine. The ruling shifts the emphasis to independent judicial interpretation of statutes, moving away from automatic deference to agency interpretations. This change aligns with the principles of Skidmore v. Swift & Co., promoting a more nuanced approach to judicial review while still respecting agency expertise.

Previews for the 2023 October Term of the Supreme Court

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18 Dec 2023
After a consequential two years in which the law of gun rights, substantive due process, religious liberty, and affirmative action, among others, was made anew, the Supreme Court's October 2023 Term features a wide array of cases that will refine the scope of its "history and tradition" approach in the Second Amendment context, contemplate the intersection of social media and the First Amendment, reconsider the foundations of the modern administrative state, and much more.

Arguendo