Administrative state

The COVID Ratchet Shows Up

Featured image As the COVID pandemic unfolded in 2020, I predicted that before it was over, we’d surely hear calls for a cabinet level “Department of Pandemic Planning” or some other equivalent of the Department of Homeland Security that we set up in the aftermath of 9/11 to “coordinate” government agency activity at all levels of government. That prediction has moved a step closer to fulfillment. From the New York Times today: »

Don’t let it bring you down

Featured image Neil Young’s “Don’t Let It Bring You Down” is the seventh track on his 1970 album After the Gold Rush. It begins: “Old man lying by the side of the road…” Since my road trip to Madison over the weekend, Young’s tune has been going through my mind with the slightly altered lyric: “Dead deer lying by the side of the road…” It could be Wisconsin’s state song. The dead »

Is The New Deal Unconstitutional?

Featured image Well, duh—the obvious answer is YES. But that hasn’t been a winning argument in the Supreme Court since 1935 unfortunately. In the aftermath of the leaked Dobbs opinion, the left has been in a panic about what other “rights” the Supreme Court might take away, like the right to same sex marriage, inter-racial marriage, contraception, and watching European soccer in the middle of the night. The left lacks imagination, and apparently »

Baby formula for adults

Featured image Abbott has announced that it has agreed to to a consent decree under which it would be allowed to reopen its Michigan baby formula plant if all goes according to plan. Former FDA Associate Commissioner Peter Pitts supports the propriety of the FDA’s actions in the Abbott case. He sets forth his views in a New York Post column here. Mr. Pitts is the president of the Center for Medicine »

Scandals In the NIH

Featured image Two stories about the National Institutes of Health hit the news today. The first arose from testimony by acting NIH director Lawrence Tabak before a House Appropriations subcommittee. Tabak admitted that NIH hid genetic information about the covid-19 virus that could have shed light on its origin, at the behest of the Chinese Communists: National Institutes of Health acting director Lawrence Tabak confirmed to lawmakers Wednesday that US health officials »

The Great Baby Formula Shortage

Featured image Two years ago it was toilet paper, now it is baby formula–a much more serious shortage. I am tuned in to it in part because one of my daughters is the mother of eight-month-old twins and has had a hard time finding formula. What is going on here? My colleague John Phelan looks at the issue and concludes that the culprits are shutdowns and the FDA: What is going on? »

Nervous in the Biden service

Featured image It was only last week that the CDC extended its absurd transportation mask mandate another 15 days, until May 3. The AP somehow omits this interesting fact from its story on the administration’s deliberations over whether to appeal Judge Mizelle’s ruling on the illegality of the mandate. The AP story reports: “The Justice Department said Tuesday it will not appeal a federal district judge’s ruling that ended the nation’s federal »


Featured image Florida federal district judge Kathryn Kimball Mizelle has ruled that the travel mask mandate is illegal. Axios has a brief story here along with a link to the decision as posted online here. I have barely had time to review the story and won’t comment on the merits of the decision until I can read it. I can only say that the mandate is obnoxious and absurd regardless of the »

End Civil Service Protection?

Featured image Trump—remember him?—is out with a proposal to repeal the Pendleton Act and other legal foundations of the civil service in the federal government. “We will pass critical reforms making every executive branch employee fireable by the president of the United States. The deep state must and will be brought to heel,” Trump said over the weekend. Cooler heads have rushed to say this is a really really bad idea. They »

Biden His Time on COVID

Featured image The State of the Union speech, which is usually delivered around the time the president submits his next annual budget proposal to Congress, is typically scheduled for January or early February. The lateness of President Biden’s first State of the Union speech on March 1 has provoked a lot of speculation that the date was picked in hopes that the Omicron variant would have peaked and very nearly disappeared completely, and »

Emerging uses of “emergency”

Featured image Two of the Biden administration’s vaccine mandates came before the Supreme Court for oral argument yesterday, one arising under OSHA and the other arising under the auspices of HHS. I thought the first of these cases raised the question of administrative law regarding the lawful scope of agency authority in an unusually pure form. Listening to the oral argument in NFIB v. OSHA, however, I have been disabused of the »

A special session

Featured image The Supreme Court has set a special session to hear oral argument in vaccine mandate cases on January 7. The cases to be heard involve the OSHA vaccine mandate that I wrote about last week here (decided by the Sixth Circuit in a 2-1 opinion) and the CMS mandate promulgated as to health care workers (essentially stayed in the Fifth Circuit and the Eighth Circuit; the Faegre Drinker firm at »

Sixth Circuit lifts mandate stay

Featured image John and I have declared the war on Covid over, but President Biden has painted the administration into the proverbial corner. He promised to extirpate the virus and means for us to die trying. In his blandly titled September 9 “action plan” titled Path Out of the Pandemic, Biden directed OSHA to issue a rule requiring private sector employers with 100 or more employees to mandate that employees either get »

Oh my, Omarova

Featured image Saule Omarova is the Biden administration’s nominee to head the Office of the Comptroller of the Currency. The OCC is not a well known or well understood agency, but it is the chief regulator of national banks. It is not a bureaucratic backwater or political dumping ground. I got to know it when I worked at TCF Financial Corporation (now absorbed into Huntington Bank). Omarova is of course the proud »

Everything not forbidden…

Featured image We seem to be going down the path leading to everything not forbidden is compulsory. The Biden administration is writing one version of the totalitarian rule into administrative law with the OSHA “emergency temporary standard” requiring employers with 100 or more employees to “develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect »

(Not that) Bill Walton with Philip Hamburger

Featured image Philip Hamburger holds an endowed chair at Columbia Law School and is author, most recently, of Purchasing Submission: Conditions, Power, and Freedom, just published by Harvard University Press. I was a fanatic admirer of Professor Hamburger’s Is Administrative Law Unlawful? (2014), which I reviewed for National Review in “A new old regime.” I thought it was the most important book I had read in a long time and still do. »

That’s easy for him to say

Featured image On Thursday President Biden spoke at the Clayco data center construction site in Elk Grove Village, Illinois. Biden was promoting compulsory Covid vaccinations (White House transcript here). Has OSHA — the federal agency assigned to promulgate the regime of compulsory vaccinations on the private sector — gotten around to issuing the “emergency” regulation Biden has ordered up? Answer: No. On Thursday the White House also issued a 26-page report on »