If ALJs are “Officers,” Who Should Appoint Them?

by Jennifer Mascott — Tuesday, June 27, 2017@jennmascott

As Aaron Nielson has reported on this blog, yesterday afternoon the D.C. Circuit issued a judgment in the SEC ALJ case. The judgment essentially reinstates the D.C. Circuit’s earlier panel decision finding that the ALJs are not Article II “officers” subject to the Constitution’s Appointments Clause requirements. The judgment thus also reinstates the D.C. Circuit’s […]

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D.C. Circuit Review – Reviewed: SEC ALJs = SCOTUS-Bound

by Aaron Nielson — Monday, June 26, 2017@Aaron_L_Nielson

The D.C. Circuit just issued an unusual order in the ongoing saga of Raymond J. Lucia Companies, Inc. v. SEC. I won’t repeat the full background here; this post already does the trick. The dispute is whether SEC administrative law judges are “inferior officers” for purposes of Article II. The Tenth Circuit has held that […]

Constitutional Avoidance and Presidential Power, by Aneil Kovvali

by Guest Blogger — Monday, June 26, 2017

Editor’s Note: Aneil Kovvali recently published a longer essay on this subject in the Yale Journal on Regulation Bulletin. You can access it here. Recent events have brought renewed attention to statutes designed to constrain the president.  Troublingly, such statutes are often given limited constructions that weaken their force.  Under the constitutional avoidance canon, statutes […]

From Big Waiver to Waiver Unlimited

by Nicholas Bagley — Monday, June 26, 2017

The Senate has now released the Better Care Reconciliation Act of 2017, its answer to the House’s American Health Care Act. The bill is wildly unpopular and has already come under fire from Senate Republicans, either for being too mean or not mean enough. But some version of the BCRA may still get 50 votes […]

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FDA Advisory Committees and Industry-Funded Patient Advocacy

by Patti Zettler — Friday, June 23, 2017@pzettler

Cross-posted on Objective Intent and Stanford’s Law and the Biosciences Blog. Industry funding of patient advocacy organizations recently has received attention from media and researchers.  For example, one 2017 study in the New England Journal of Medicine found that over 80% of patient advocacy organizations with annual revenues of at least $7.5 million reported receiving industry […]

“Passing the Buck” in Agency Adjudication, by Bijal Shah

by Guest Blogger — Friday, June 23, 2017

Agencies often share their power with one another—the operative word being ‘share.’ For instance, they engage in “joint rulemaking” with other agencies on the basis of shared statutory authority. They also participate in “coordinated interagency adjudication,” in which they subdelegate portions of their power to adjudicate administrative claims or otherwise share the responsibility of furthering an adjudication process on […]

Mortazavi on Computer Analysis of Rulemaking Comments (AdLaw Bridge Series)

by Emily Bremer — Friday, June 23, 2017@emilysbremer

Technology has promised big benefits for public participation in notice-and comment rulemaking, but it has also presented new challenges for agencies.  For example, as the number of rulemaking comments has increased, so too has the administrative burden of reviewing those comments.  Can an agency use computer software to help ease this burden while still discharging its obligations under the APA?  Melissa Mortazavi addresses […]

“Not a One-Person Show”: Trump as Administrator-in-Chief of the Immigration Bureaucracy, by Ming H. Chen

by Guest Blogger — Wednesday, June 21, 2017

Recent events paint a portrait of what President Trump is like as a boss. It is not flattering. The Ninth Circuit’s pronouncement that “Immigration, even for the President, is not a one-person show” in its latest rejection of the travel ban reveals his autocratic style. President Trump’s contradictory defenses of the travel ban while litigation […]

The Challenges of Performance-Based Regulation: Lessons from Two Diesel Emissions Scandals, by Cary Coglianese & Jennifer Nash

by Guest Blogger — Tuesday, June 20, 2017

When the Volkswagen diesel emissions scandal erupted recently—resulting in a precipitous drop in the company’s stock price, the resignation of its CEO, a $14.7 billion judgment against the company, and extensive environmental harm—we were reminded of an eerily similar environmental scandal from about 20 years ago. In 1998, the US Environmental Protection Agency (EPA) brought […]