Oregon Restaurant and Lodging v. Thomas Perez

O'SCANNLAIN, Circuit Judge, with whom KOZINSKI, GOULD, TALLMAN, BYBEE, CALLAHAN, BEA, M. SMITH, IKUTA, N.R. SMITH, Circuit Judges, join,

dissenting from the 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 ah agency’s invitation to regulate, thereby reaching the startling conclusion that the Department of Labor can prohibit any…