WV v. EPA: Some Answers about Major Questions (But Not All the Answers We Need)

Jonathan Adler

August 4, 2022

In West Virginia v. Environmental Protection Agency, the Supreme Court correctly concluded that the Obama Administration and U.S. Court of Appeals for the D.C. Circuit embraced an overbroad understanding of the EPA’s authority under Section 7411 of the Clean Air Act. The way the Court reached that conclusion left something to be desired, however. As I discuss in my forthcoming analysis of the case for the Cato Supreme Court Review, the Court front-loaded its consideration of the major questions doctrine and failed to fully engage with the relevant statutory provisions. It also missed an opportunity to refocus the major questions doctrine on what really matters in cases like this: What power did Congress delegate to the agency.

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The Latest Energy and Environmental Regulations

Daren Bakst

July 22, 2022

Even for experts who regularly track energy and environmental regulations, it can be difficult to stay abreast of many important regulations that have been proposed or soon will be proposed across the federal government. This post is intended to help those interested in federal energy and environmental regulations. While by no means comprehensive, its focus is identifying many important rules that have been proposed and are still receiving comments (as of the date of this writing) or that will soon be proposed, that is, they are still under Office of Information and Regulatory Affairs (OIRA) EO 12866 review.

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Financial Privacy And The Fourth Amendment: Restoring Balance To The Crypto Universe

Norbert Michel

June 23, 2022

On Tuesday June 7, I had the privilege of participating in Crypto Wars: Balancing Privacy versus National Security, a Federalist Society panel moderated by Dina Rochkind. The other panelists–Michele Korver, Kathy Kraninger, and Mick Mulvaney–and I discussed a wide range of issues related to the current regulatory environment for digital assets, a bit broader than the title might suggest.

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How Fifth Circuit Affirmed George Washington’s Vision of Fundamental Justice

John Berlau

June 14, 2022

The recent ruling by the U.S. Court of Appeals for the Fifth Circuit in Jarkesy v. SEC is a victory for limited constitutional government on many levels. As Mario Loyola, professor at Florida International University and senior fellow at my organization, the Competitive Enterprise Institute (CEI), writes in The Wall Street Journal, the court “has taken what could be a historic step toward restoring the Constitution’s checks and balances.”

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“Those who fail to learn from history are condemned to repeat it.”

Susan Dudley

June 6, 2022

In a Wall Street Journal op-ed, Howard Beales and Tim Muris review the results of the Federal Trade Commission’s previous efforts (in the 1970s) to reshape the economy through rushed rulemaking; it is a disastrous history that the FTC’s new majority seems determined to repeat.

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Go Ahead, You Do It For Us

Wayne A. Abernathy

February 18, 2022

Rule of Law or Rule of Experts?  Almost exactly 9 years ago, I spoke to this question, posed by the erosion of the Constitution’s separation of powers.  At a legal symposium in Philadelphia, I raised the problem of concentration of say-so in federal financial regulators.

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New Webinar: “FTC’s Revolution Through Rulemaking”

Nicholas Nelson

January 4, 2022

In November, the Federalist Society’s Regulatory Transparency Project presented a panel discussion on the history of FTC rulemaking authority.

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New Report: “37 Biden Administration Regulations in the Pipeline that Americans Should Know About”

Jeffrey Holmstead

December 16, 2021

The Heritage Foundation has just released a special report entitled “37 Biden Administration Regulations in the Pipeline that Americans Should Know About.”

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New Webinar: “Executive Order on Foreign-Controlled Apps”

Matthew R. A. Heiman

October 1, 2021

In June, President Biden issued a new executive order directing the federal government to review the security threats posed by foreign-controlled software applications. On September 2, Matthew Feeney (Cato Institute) moderated an insightful discussion on the topic featuring Jennifer Hay (DataRobot), Jamil Jaffer (National Security Institute), and Margaret Peterlin (Texas A&M University)…

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Litigation Update: Dakota Access Pipeline Case Gives Supreme Court Chance for Major NEPA Ruling

Mario Loyola

October 1, 2021

This case gives the Court an opportunity for a major ruling on one of the country’s most impactful environmental laws.”

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