Monthly Archives: July 2015

Does Procedural Review of Agency Guidance Make Sense? A Recent Example from the CFPB

by Connor N. Raso — Friday, July 31, 2015

The House Financial Services Committee overwhelmingly passed a bill declaring that the Consumer Financial Protection Bureau’s (“CFPB”) much-debated guidance document (“Bulletin”) on indirect auto lending to “have no force or effect.” At first glance, this bill would do nothing legally. Under administrative law doctrine, guidance documents like the Bulletin lack legal effect by definition. The […]

The IRS vs. Private Equity (Part 2)

by Andy Grewal — Tuesday, July 28, 2015

In my previous post, I briefly discussed how the IRS has short-circuited the APA’s notice and comment rulemaking procedures to combat tax motivated transactions by private equity firms. I’d like to further flesh out that point here. Given the general readership of this blog, I’ll start by considering a hypothetical environmental statute and then turn […]

Rodriguez, Stiglitz & Weingast on Presidential Signing Statements and Separation of Powers (AdLaw Bridge Series)

by Christopher J. Walker — Monday, July 27, 2015@chris_j_walker

In my survey of federal agency rule drafters, I decided to ask a question about the role of presidential signing statements in agency statutory interpretation. In particular, I included a list of nine types of legislative history and asked: “For each of the following, please tell us if the type of legislative history is a (VR) […]

Justice Thomas’s Opinions on Administrative Law This Term

by Andrew Hessick — Thursday, July 23, 2015@andyhessick

In recent terms, several justices have expressed concern about the breadth of powers held by administrative agencies. Those views have been expressed in concurrences and dissents. Agencies accordingly have not seen substantial changes to their authority—though one notable exception is King v. Burwell, which resulted in the Court strengthening Chevron step zero by saying that agencies […]

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The IRS Beats Private Equity Firms At Their Own Game

by Andy Grewal — Thursday, July 23, 2015

Earlier this week, the IRS issued regulations related to private equity “fee waiver” transactions, which are designed to convert high-taxed ordinary income into low-taxed capital gain. At first, I was pleasantly surprised by the IRS’s method of rulemaking here. Usually, when it issues regulations, the IRS announces that the APA does not apply, and it […]

Improved Economic Analysis in SEC Rulemaking?

by Christopher J. Walker — Wednesday, July 22, 2015@chris_j_walker

As I’ve blogged about before, the role of cost-benefit analysis—and economic analysis more generally—in financial regulation has been a hot topic in recent years among scholars, policymakers, regulators, and the regulated. This debate has been sparked in part by the D.C. Circuit’s aggressive review of SEC rulemaking—in cases like Business Roundtable v. SEC and others—and […]

Agency-to-Agency Agenda-Setting

by Connor N. Raso — Tuesday, July 21, 2015

The agenda-setting phase of the regulatory process is critically important. In a time of constrained agency budgets and mounting policy challenges, an agency may send an important signal to market participants simply by placing an issue onto its agenda. Agency agenda-setting can also frame subsequent policy debates. Agenda-setting is a difficult topic to study partly […]

Michaels on Parrillo and Government Privatization (AdLaw Bridge Series)

by Christopher J. Walker — Monday, July 20, 2015@chris_j_walker

I previously blogged here about Nicholas Parrillo‘s terrific book Against the Profit Motive: The Salary Revolution in American Government, 1780-1940 (2013), noting that the book “is a fascinating read for anyone interested in the history (and future) of administrative law and regulation.” Recently in the pages of the Harvard Law Review, Jon Michaels reviews Nick’s […]

Carrying Out Agency Threats

by Andy Grewal — Sunday, July 19, 2015

In 1992, the IRS issued proposed regulations designed to combat a tax strategy used by the May Department Stores Company. Although the regulations were not immediately effective, the IRS announced that it when it finalized them, the regulations would apply retroactively to 1989. Consequently, some taxpayers took the proposed regulations into account in structuring their […]

Upcoming ABA Teleforum on Michigan v. EPA

by Connor N. Raso — Tuesday, July 14, 2015

The ABA Admin Law Section is hosting a teleforum on Michigan v. EPA this Thursday, July 16 at 11:00 AM. Details on the program are available here. The program will feature Richard Revesz (NYU School of Law), Andrew Grossman (BakerHostetler), and yours truly. Adam White (Boyden Gray & Associates, Manhattan Institute) will moderate the discussion. […]