Commercial Litigation and Arbitration

Circuit Splits — Good Quote: Circuit Split Perhaps Does Not Fully Describe the … State of Affairs. It Is More Like We Have Spun out of the Known Legal Universe…

Or. Restaurant & Lodging Ass’n v. Perez, 2016 U.S. App. LEXIS 16361 (9th Cir. Sept. 6, 2016) (8 judges dissenting from denial of rehearing en banc):

Our court today rejects the most elemental teaching of administrative law: agencies exercise whatever powers they possess because--and only because--such powers have been delegated to them by Congress. Flouting that first principle, the panel majority equates a statute's "silence" with an agency's invitation to regulate, thereby reaching the startling conclusion that the Department of Labor can prohibit any workplace practice Congress has not "unambiguously and [*4]  categorically protected" through positive law. The dissenting opinion had it right; the panel majority's extravagant theory is more than the Constitution will bear. And it is more than our own precedents will allow. Because the panel majority reads our precedents out of existence, and opens not one, but two circuit splits in the process, I respectfully dissent from our refusal to rehear these consolidated cases en banc.


4   "Circuit split" perhaps does not fully describe the resulting state of affairs. It is more like we have spun out of the known legal universe and are now orbiting alone in some cold, dark corner of a far-off galaxy, where no one can hear the scream "separation of powers."

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