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Articles by Chad Squitieri
The Supreme Court as agent of the people Original
(Kevin Carter/Getty Images) In my first two entries for this column, I focused on the president’s removal power and Congress’ power to make law. This third entry focuses on our third branch of government and explains why the Supreme and inferior federal courts are properly conceptualized as faithful agents of We the People – not faithful agents of Congress.
Respecting our multi-branch lawmaking process Original
Major QuestionsCommentary (Kevin Carter/Getty Images) In my inaugural entry for this column, I critiqued the Supreme Court’s reliance on an abstract conception of the “separation of powers.” Because the Constitution does not contain a “separation of powers” clause, but instead contains a collection of specific provisions that enforce the separation of powers in specific ways, I contended that the court should more carefully refer to the specific constitutional provisions that support its...
Slaughter’s vice Original
(Kevin Carter/Getty Images) As a new school year gets underway, law students might expect to soon be called upon to answer a seemingly simple question: What did the Supreme Court hold in Trump v. Slaughter?
A blog from the Yale Journal on Regulation and ABA Section of Administrative Law & Regulatory Practice.
I wanted to share a call for applications for this summer’s Separation of Powers Bootcamp, hosted by the Separation of Powers Institute at Catholic Law in Washington, DC. The August bootcamp is geared toward graduating 3Ls and recent law school grads. Applications are due May 29, 2026. The Separation of Powers Institute (“SPI”) is preparing to hold its second annual Separation of Powers Bootcamp in Washington, DC on Aug. 3–5, 2026.
On That 3-3-3 Tariffs Decision
The Supreme Court issued its opinion in the tariff cases yesterday. The decision was highly splintered. Although six justices agreed that the President could not impose IEEPA tariffs, the Chief Justice was unable to maintain a majority that clearly relied on any one rationale.
Yale Journal on Regulation
Last month the Eleventh Circuit heard argument in U.S. ex re. Zafirov v. Florida Medical Associates, LLC, which concerns whether the qui tam provision of the False Claims Act (“FCA”) comports with Article II of the Constitution. The case (or one like it) seems bound for the Supreme Court—where several justices have already raised questions about qui tam’s constitutionality. Christian D. Sheehan and John P. Elwood published a helpful recap of the Eleventh Circuit argument.
New Podcast of Potential Interest to Notice & Comment Readers
As we approach Thanksgiving travels, I wanted to share a new monthly podcast that might be of interest to readers of this blog. The podcast is titled “The Separation of Powers,” and it is produced by the Separation of Powers Institute at the Catholic University of America. I host the podcast, and each episode typically includes an interview with someone writing in the administrative law space. This month’s episode (“The Law-Fact Distinction”) featured an interview with Professor Haley N. Proctor.
Nondelegation Doctrines – Chad Squitieri
What comes next for the nondelegation doctrine? In “Nondelegation Without Chaos,” Professor John O. McGinnis offers some characteristically insightful thoughts. In particular, he outlines obstacles standing in the way of a reinvigorated nondelegation doctrine, and offers a proposed means of overcoming them.
Regulatory Tariffs Can Permissibly Raise Revenue: A Response to Professors Amar
At oral argument in the tariff cases, a so-called “donut hole” argument was raised. The argument maintains it would be highly unlikely for the statutory phrase “regulate … importation” to confer a host of unenumerated powers—including the power to impose licensing fees—but not confer the power to regulate importation by imposing duties (i.e., tariffs).
The Supreme Court should listen to the founders on tariffs
The Supreme Court should listen to the founders on tariffs (washingtonpost.com) The Supreme Court should listen to the founders on tariffs By Chad Squitieri 2025100915315000 The Supreme Court began hearing oral arguments this week for its new term, which includes two consolidated cases addressing the president's tariff power. The challengers bringing the cases contend that President Donald Trump has unlawfully exercised taxation power belonging to Congress.
Conflating Taxes With Tariffs: Clear Error in the Federal Circuit’s Tariff Opinion, by Chad Squitieri
Last Friday, the Federal Circuit issued its opinion in V.O.S. Selections v. Trump, which concerns whether the International Emergency Economic Powers Act (“IEEPA”) empowers the President to impose emergency tariffs. In a 7-4 opinion, the Federal Circuit ruled that IEEPA did not authorize the challenged tariffs. Given how oral argument had gone, that ruling was not a surprise—although I agree that the vote breakdown is surprisingly good news for the government.
Tariffs as a Means of Regulating Commerce, by Chad Squitieri
In Learning Resources v. Trump, the district court suggested that, to empower the President to impose tariffs, Congress must do more than empower the President to “regulate . . .
The Court and the Separation of Power – Chad Squitieri
Under Chief Justice Roberts, the Supreme Court has demonstrated a willingness to enforce the Constitution’s separation-of-powers principles. This is welcome news for those who think that aspects of the administrative state run afoul of important constitutional lines separating the federal government’s three coequal branches. But not everyone has found the Roberts Court’s separation-of-powers jurisprudence to be cause for celebration.
Trump’s Agencies After Chevron
This past summer, in Loper Bright v. Raimondo, the Supreme Court overruled its 1984 decision in Chevron v. NRDC. Under Chevron, perhaps the most well-known case about administrative law, courts were required to defer to administrative agencies’ interpretations of federal statutes. Now that Chevron is overruled, courts must independently interpret statutes themselves, rather than systematically favor the statutory interpretations proposed by agencies.
Auer after Loper Bright, by Chad Squitieri - Yale Journal on Regulation
In Loper Bright v. Raimondo, the Supreme Court ruled that Section 706 of the Administrative Procedure Act (APA) prohibits courts from deferring under Chevron v. NRDC to agency interpretations of statutes. What, if anything, does that holding mean for the deference courts give agency interpretations of regulations under Auer v. Robbins? On one reading of Loper Bright, Auer is no longer good law.
A Loper Bright Future for Statutory Interpretation – Chad Squitieri
July 3, 2024 With the overruling of Chevron, courts must interpret statutes independently. The Supreme Court’s 1984 opinion in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.was not supposed to be revolutionary.
What the Court Did Not Decide in Community Financial, and How That Might Prove Dispositive for Future Challenges to the CFPB’s Funding Statute, by Chad Squitieri - Yale Journal on Regulation
On two occasions, the majority opinion in CFPB v. Community Financial made clear that it was tasked with answering only a “narrow” question concerning the requirements imposed by the Appropriations Clause. Slip Op. at 1, 5. The Court’s answer to that narrow question was relatively straightforward: the Appropriations Clause requires no more than “a law that authorizes the disbursement of specified funds for identified purposes.” Id. at 19.
Which Appropriations Power?: Getting Back to Basics in the Supreme Court’s Upcoming CFPB Funding Case, by Chad Squitieri
Next term the Supreme Court will hear argument in CFPB v. Community Financial, which concerns whether the Consumer Financial Protection Bureau (“CFPB”) may constitutionally receive its funding from the Federal Reserve, rather than through the annual appropriations process.
Is the Administrative State a "Faithful Development"? – Chad Squitieri
Throughout his career, Harvard Law Professor Adrian Vermeule has been a vocal defender of the administrative state. He continues that defense in Common Good Constitutionalism.
Major Problems with Major Questions – Chad Squitieri Original
This July in West Virginia v. EPA, the Supreme Court formally recognized the “major questions doctrine.” That doctrine, which can be traced to a 1986 law review article published by then-Judge Stephen Breyer, calls on courts to consider a legal question’s “political importance” when interpreting statutes. The major questions doctrine is a product of legal pragmatism—a theory of statutory interpretation advanced by Justice Breyer which often elevates statutory purpose and consequences over text.
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