Jordan Ascher

I’m encountering the word “munch” a lot lately and I do not care for that word at all. 🥴

Great & provocative paper and 🧵 from Jordan on what admin law might have to say about agencies using genAI & machine learning for rulemaking. Includes a superb research agenda for scholars wondering where to dig in. ⬇️

To be clear, there is a lot of uncertainty as to how longstanding rules of administrative law will apply to these new technologies. We get into that too. Read up! governingforimpact.org/wp-content/u...

But administrative law will let the sunlight in on agencies' AI usage. And that should go some way toward pushing agencies away from unscrupulous and irresponsible uses of new technology toward more defensible practices.

These rules of transparency shouldn't necessarily limit an agency's ability to use AI—after all, it's easy to imagine many ways AI systems could, if used responsibly, make federal rulemaking faster, more effective, and more open.

First, agencies will often need to DISCLOSE when they have used AI to power a rulemaking. Second, they must EXPLAIN how they used AI, and why they think AI has produced reliable results in particular cases.

The Administrative Procedure Act broadly requires agencies to be transparent about how they make rules. They must make public the data and assumptions on which they rely and explain themselves. We think those rules extend to AI usage.

The Trump administration has made clear that it is going to use AI to supercharge deregulation. What do the doctrines of administrative law have to say about AI? A new Issue Brief from me and GFI explores that question.
governingforimpact.org/wp-content/u...

AI is going to have a huge role in federal rulemaking. It probably already does. The public should push agencies to disclose how they are using AI. Me, in Notice & Comment, on one way to do so: www.yalejreg.com/nc/seeking-d...

I have a piece in Lawfare today exploring a supporting player in litigation against executive action—nonstatutory review. A quick take on a big topic.

NRC v. Texas and Nonstatutory Review of Executive Action There is a powerful means to challenge executive action apart from the Administrative Procedure Act.

"Despite the Court’s rejection of the application of this doctrine in Nuclear Regulatory Commission, nonstatutory review is likely to remain a valuable tool in pending and future challenges to the administration," writes @j-p-a.bsky.social. www.lawfaremedia.org/article/nrc-...

Extremely enjoyable baseball experience.

“Universal” Relief After Trump v. CASA CASA’s reasoning left open multiple avenues for litigants seeking to obtain broad relief against unlawful executive actions

What comes next after CASA?

“Universal” relief remains possible, explain John Lewis and Jordan Ascher. The APA and other equitable remedies can still block unlawful executive actions nationwide.

A must-read primer. 👇

www.justsecurity.org/116162/unive...

Cut through the noise on universal injunctions and learn about the current state of play with me and @jtlew3.bsky.social.

Topics covered:

> FINAL AGENCY ACTION
> NOTICE-AND-COMMENT RULEMAKING
> ARBITRARY-AND-CAPRICIOUS REVIEW
> PRETEXTUAL AGENCY ACTION
> NON-APA REVIEW OF EXECUTIVE ACTION
> REMEDIES
> AGENCY NONENFORCEMENT
> HOW TO WRITE A COMMENT

An administrative law casebook you can use!

The Administrative Procedure Act is all anyone's talking about these days. My org, Governing for Impact, has just put out a nine-part (!) library of primers on what APA litigators need to know. It's all here:

governingforimpact.org/apa-library/

Opinion here: storage.courtlistener.com/recap/gov.us...

Judge Liman, in granting a preliminary injunction against the "cancelation" of congestion pricing, agrees with this reading:

Count yourself lucky! Dog images are treated as a currency in heterosexual culture.

Do go on!

This illustrates how the Supreme Court facilitates presidential authoritarianism. By declining to enforce federal laws that bind the president—except for laws it likes—it invites presidents to challenge legal boundaries. Our democracy needs a court that enforces federal law, not one that defies it.

The Supreme Court’s notorious recent decisions construed federal laws criminalizing certain acts by state and local officials; they should not be treated as authoritative treatments of the word “corruption.”

Filing: storage.courtlistener.com/recap/gov.us...

Great bit from the MTA’s preliminary injunction motion in the congestion pricing case.

From the PI motion.

Notably, the latest DOT threat letter shows that DOT wasn't able to identify a requirement of law that, if incorporated into the agreement by reference, would permit termination. Instead, they rely on the fallback argument DOJ offered, that a "pilot program" cannot be expected to last forever (lol).

See Climate United Fund v. Citibank, N.A., __ F. Supp. 3d __, 2025 WL 1131412, at *16 (D.D.C. Apr. 16, 2025) (Chutkan, J.) ("[the agency] can only terminate a federal award on this basis [i.e., using (a)(4)] pursuant to the terms and conditions of the federal award.").

Also, rescission, even pursuant to OMB regulation, will continue to count as "final agency action" under the Administrative Procedure Act, such that numerous APA claims will continue to lie—including that DOT acted pretextually and arbitrarily, which it did. Lots of meat there.

Accidental letter here: storage.courtlistener.com/recap/gov.us...

Reg here: www.ecfr.gov/current/titl...

That's a sensible rule! OMB probably wanted a contracting regime that engenders certainty (usually an important value for both parties). So they made sure that unilateral rescission can generally only happen pursuant to clear, agreed-to terms. This is just a first-cut take, though. /fin