Monthly Archives: November 2016

Two Futures for Administrative Law, by Adrian Vermeule

by Guest Blogger — Wednesday, Nov. 30, 2016

The President-elect already seems quite likely to be re-elected, if the screeching disarray of his enemies is any guide. It is therefore not too early to indulge in speculation about the course of administrative law in the Age of Trump. I’ll outline two different futures that seem thinkable to me — not only logically possible, […]

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Revisiting APA Section 553, by Bernard W. Bell

by Guest Blogger — Wednesday, Nov. 30, 2016

On February 8, 2016, the ABA adopted recommendations to revamp the APA’s informal rulemaking provision, 5 U.S.C. § 553.  In its Report to the President-Elect, the ABA Section on Administrative and Regulatory Law has urged the Trump administration to endorse those revisions (pages 10-11).  The provisions have been summarized previously in this blog here. Section […]

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Why Elizabeth MacDonough Will Be the Most Powerful Person in America, by Sam Wice

by Guest Blogger — Wednesday, Nov. 30, 2016

In 2017, the most powerful person in America will not be President Trump, a swing vote on the Supreme Court, or a Congressional leader, but the non-partisan Senate Parliamentarian. This is because she will be the arbiter of the budget reconciliation process. Budget reconciliation is a method of passing legislation in the Senate that avoids […]

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“Financial Regulation: Political, Administrative, and Constitutional Accountability”: A Conference at the Center for the Study of the Administrative State

by Aaron Nielson — Tuesday, Nov. 29, 2016@Aaron_L_Nielson

As noted, next week will be the ABA Section on Administrative Law & Regulatory Practice’s annual administrative law conference. Yet one conference is not nearly enough to contain all of admin law. That is why there also will be another conference going on next week, this one at the Center for the Study of the […]

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The Past and Future of Judicial Deference: A Scholarly Examination (Co-Sponsored by Notice & Comment)

by Aaron Nielson — Tuesday, Nov. 29, 2016@Aaron_L_Nielson

If you are in Washington, D.C. next week, you should attend the ABA Section on Administrative Law & Regulatory Practice’s annual administrative law conference. It will be on December 8 and 9th. The relevant information can be found at this link. I went last year and it was a lot of fun — if “fun” […]

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If the Public Is Not Aware of Agency Guidance, Does It Exist?, by Levon Schlichter

by Guest Blogger — Tuesday, Nov. 29, 2016

This blog post is one in a series of posts discussing the 2016 Report to the President-Elect that American Bar Association’s Section of Administrative Law and Regulatory Practice issued shortly before the presidential election. In this post, I will discuss the recommendation that the President ensures that all agency guidance documents are made available online […]

The Fed’s “nuclear option” for checking the Trump Administration (Trump versus the Federal Reserve, part III)

by Peter Conti-Brown — Tuesday, Nov. 29, 2016

Yesterday, I discussed why the Fed’s political power is something that both it and the Trump Administration should consider in the coming confrontations that one can expect between them. Today, I want to focus on the Fed’s legal strategy by resurrecting statutorily permissible but largely discarded patterns of Fed governance that could require Trump to […]

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Trump versus the Federal Reserve, part II: Reports of the Fed’s demise are greatly exaggerated

by Peter Conti-Brown — Monday, Nov. 28, 2016

[This post is drawn in part from a forthcoming policy brief co-authored with Simon Johnson] Last week, I said that we should not expect the Trump-Republican coalition to have the same hawkish posture toward monetary policy that we saw within the Republican coalition during its anti-Obama years from 2009-2017. There are coalitional tactics and there […]

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Retrospective Review, for Tomorrow’s Sake

by Adam White — Monday, Nov. 28, 2016

In the ABA Administrative Law Section’s Report to the President-Elect, one finds a rather familiar recommendation: that the agencies undertake “careful, in-depth retrospective review of existing rules.” I call this a “familiar” recommendation, because President-elect Trump’s predecessor called for such a retrospective review in his own Administration. In early 2011, after the mid-term elections, President Obama […]

D.C. Circuit Review – Reviewed: “The Most Important Separation-of-Powers Case in a Generation”

by Aaron Nielson — Friday, Nov. 25, 2016@Aaron_L_Nielson

There are no D.C. Circuit opinions this week, but even so, we live in interesting times — especially in the world of administrative law. Right now, President-elect Trump is putting together his slate of cabinet nominees, Congress is paying close attention to the Congressional Review Act, and Chief Judge Garland is preparing to return to […]