Monthly Archives: December 2017

D.C. Circuit Review – Reviewed: Floods, Fires, and Clerkships

by Aaron Nielson — Friday, Dec. 29, 2017@Aaron_L_Nielson

In the aftermath of Watergate, a young — well, young-ish — Antonin Scalia found himself defending executive privilege before Congress. This is how he closed his remarks: “I realize that anyone saying a few kind words about executive privilege after the events of the last few years is in a position somewhat akin the man […]

Sunstein & Vermeule on Administrative Law’s Morality (and 2017 AdLaw Year in Review)

by Christopher J. Walker — Friday, Dec. 29, 2017@chris_j_walker

This year has been an eventful one for administrative law, to put it mildly. We have had a change in presidential administration, with an accompanying focus on deregulation across the federal bureaucracy and mission re-orientation at a number of federal agencies. One agency (the CFPB) currently has dueling acting directors—one appointed by the outgoing agency head and the other […]

Waiting Until January 3 to Sign Tax Reform Would Not Have Delayed a PAYGO Sequestration

by Sam Wice — Saturday, Dec. 23, 2017@Wice_sam

In an earlier post, I suggested that Republicans should wait until January 2018 to pass tax reform so that they can delay a Pay-As-You-Go (PAYGO) sequestration.  President Trump appears to have taken this idea to heart and decided that if Congress did not waive the PAYGO sequestration, he would wait until January 3, 2018 to […]

Judicial exceptionalism and its corrosive effects

by Peter Conti-Brown — Friday, Dec. 22, 2017

I almost never read the comments on these posts–that’s rule number 1 for anyone active in internet life–but saw an alert to approve/disapprove a comment on my last post. It was from an anonymous litigator in the 9th Circuit, but it’s very good and worthy of considering what we do when we fetishize and worship […]

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The CFPB is now a part of the White House. That’s illegal.

by Peter Conti-Brown — Thursday, Dec. 21, 2017

Agency independence is a funny thing. Its existential legitimacy is the subject of a searing debate. The Harvard Law Review solicited an essay from Gillian Metzger that dives into the nature of administrative separation and independence (including with a reply essay from our own Aaron Nielson). And the en banc DC Circuit is currently reviewing […]

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Vacating an EEOC rule on wellness programs

by Nicholas Bagley — Thursday, Dec. 21, 2017

A few months back, I flagged an opinion from a D.C. district court holding that a new EEOC rule governing wellness programs was arbitrary and capricious. The rule allowed employers to impose huge penalties on employees who refused to participate in wellness programs, even though the Americans with Disabilities Act says those programs must be […]

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Recess Appointments Revisited

by Sam Wice — Thursday, Dec. 21, 2017@Wice_sam

In January, I wrote that recess appointments would likely return this year because the same party controls the presidency, Senate, and House of Representatives.   With an upcoming recess, I thought now would be a good time to revisit the subject and figure out why I was wrong. The Constitution gives “[t]he President [the] Power to fill up […]

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Brookings Series on Regulatory Process and Perspective

by Christopher J. Walker — Wednesday, Dec. 20, 2017@chris_j_walker

Over at Brookings’ Center on Regulation and Markets, Philip Wallach has started a terrific new Regulatory Process and Perspective Series, with Anne Joseph O’Connell, Rachel Augustine Potter, and Connor Raso as regular contributors. Here is Wallach’s introduction to the series: Regulatory process” is a phrase that can’t help but sound boring— to many people, it […]