Three Interesting Things About The New Source Review Decision

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2 Responses

  1. Scott Moss says:

    I’m not sure if this makes me an idealist or a cynic, but my hunch is that this was an easy textualist call for Judge Brown (and her panel-mates). I think the Bush administration has been repeatedly going quite far in asserting questionable statutory authority to implement its policies, including in the Gonzales v. Oregon case, the NSA wiretapping not-yet-a-case, and this case. When the administration does that, it can’t count on support from notionally “conservative” judges who stick to their guns on (a) textualism and (b) the limited-government theory (akin to the dead old “non-delegation doctrine”) of construing narrowly any asserted statutory authority for executive policy-making.

  2. David Zaring says:

    You can certainly read the opinion for support of that view, which is pretty classic Chevron step 1 analysis.