Monthly Archives: June 2017

D.C. Circuit Review – Reviewed: Welcome to Lancaster

by Aaron Nielson — Friday, June 30, 2017@Aaron_L_Nielson

Here at Notice & Comment, we square our shoulders and address the hard questions. No matter how controversial, no matter how divisive, we do not flinch from this duty. After all, we fill our bellies here with meat, not milk; we put away childish things. The time therefore has come for all right-thinking men and […]

The Uniform Criminal Records Accuracy Act

by Brian Lewis — Friday, June 30, 2017

Uniform Law Commission Acts and Projects Part 3 The Uniform Criminal Records Accuracy Act Many developments concerning criminal records have occurred over the past twenty years, including the creation of the National Criminal Background Check System in 1993, the establishment of criminal history repositories in all states, and the increasing use of criminal record checks […]

This entry was tagged .

ACUS Adopts Two Recommendations at the 67th Plenary (ACUS Update)

by Emily Bremer — Friday, June 30, 2017@emilysbremer

At its 67th Plenary Session, held Friday, June 16th, the Assembly of the Administrative Conference adopted two new recommendations: Recommendation 2017-1, Adjudication Materials on Agency Websites and Recommendation 2017-2, Negotiated Rulemaking and Other Options for Public Engagement.  As described on ACUS’s website: Recommendation 2017-1, Adjudication Materials on Agency Websites provides guidance regarding the online dissemination of administrative […]

The “Business of Banking” in New York – An Historical Impediment To the OCC’s Proposed National “Fintech Charter,” by Daniel S. Alter

by Guest Blogger — Thursday, June 29, 2017

The U.S. Office of the Comptroller of the Currency (“OCC”) is the federal agency responsible for chartering national banks.  See 12 U.S.C. § 1.  This past March, after a year-long public dialogue with various sectors of the financial services industry regarding “Responsible Innovation in the Federal Banking System,” the OCC “determined that it is in […]

This entry was tagged .

The Republicans’ Uncertainty Strategy

by Nicholas Bagley — Thursday, June 29, 2017

Together with Craig Garthwaite, a professor at Northwestern, I’ve got an op-ed in the New York Times on the consequences of the Republicans’ strategy to sabotage the Affordable Care Act. The health care industry consists of a dense network of public-private partnerships. Even programs widely viewed as “government” insurance, like Medicare and Medicaid, depend on […]

This entry was tagged .

Can you smell the freedom?

by Nicholas Bagley — Wednesday, June 28, 2017

The central theme of the Republican campaign to repeal the Affordable Care Act has been freedom: freedom from Obamacare’s onerous regulations, freedom from overpriced insurance and most of all, freedom from the tyrannical individual mandate. The Senate has now released its long-awaited alternative to Obama-era health reform. Although the Better Care Reconciliation Act is embattled, there’s still a decent […]

This entry was tagged .

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 […]

This entry was tagged .

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 […]

This entry was tagged .