Monthly Archives: July 2018

Can Montana Force the IRS to Break the Law?

by Andy Grewal — Tuesday, July 31, 2018

The IRS recently changed the rules on how some tax-exempt organizations must report information related to their “substantial contributors” (that is, those who donate $5,000 or more in a year). This change has sparked a political controversy, fueled by concerns over “dark money” in politics and the Citizens United decision. One state (Montana) has already […]

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Mashaw and Berke on Presidentialism Versus Pluralism: The Missing Epilogue to Madison’s Nightmare, by Peter M. Shane

by Guest Blogger — Monday, July 30, 2018

The University of Chicago Press surprised me in 2015 with the happy news that they intended to bring out in paperback my 2009 book, Madison’s Nightmare: How Executive Power Threatens American Democracy. A less happy surprise was the press’s lack of interest in my providing an epilogue that would bring the analysis forward through seven […]

Wishful Thinking? Justice Gorsuch and the Future of the Seminole Rock/Auer Deference Doctrine, by Kevin O. Leske

by Guest Blogger — Monday, July 30, 2018

On July 9, Chris Walker posted about the cert petition filed in July in Kisor v. O’Rourke, which presents the question of “whether the Court should overrule Auer and Seminole Rock” – the doctrine that requires courts to defer to a federal agency’s interpretation of its own regulation unless the agency’s interpretation is “plainly erroneous or inconsistent […]

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Cost-Benefit Analysis of Tax Regulations: A Case Study (with Jennifer Nou and David Weisbach)

by Daniel Hemel — Friday, July 27, 2018

[Note: This post is co-authored with University of Chicago Law School colleagues Jennifer Nou and David Weisbach.] The Treasury Department and the Internal Revenue Service (IRS) have submitted a proposed rule regarding the new passthrough deduction to the Office of Information and Regulatory Affairs (OIRA) for review. This appears to be the first tax regulation labeled as “economically significant” […]

D.C. Circuit Review – Reviewed: More Artful Dodging

by Aaron Nielson — Friday, July 27, 2018@Aaron_L_Nielson

A couple of weeks ago, I rebutted — well, at least I think so — the suggestion that Judge Kavanaugh is an artful dodger. This week, however, I’m going to backpedal a bit. It turns out that Kavanaugh may very well have to be an artful dodger once he gets to the Supreme Court. Let […]

Would a Justice Kavanaugh Overturn Humphrey’s Executor and Declare Independent Agencies Unconstitutional?

by Chris Walker — Friday, July 27, 2018@chris_j_walker

Over at SCOTUSblog yesterday, I examined the administrative law jurisprudence of Judge Kavanaugh, President Trump’s nominee to the Supreme Court. At nearly 4,000 words, I’d like to say it was a deep dive for a blog post, but Judge Kavanaugh has written more than 120 opinions dealing with administrative law. So the final draft was nearly […]

U.S. v. California: The District Court’s Preliminary Injunction Ruling

by Bernard Bell — Friday, July 27, 2018

On March 6, 2018, the Justice Department sued California over its “sanctuary” laws.  U.S. v. California, Dkt No. 18-264, Complaint (E.D. Cal.); Thomas Fuller & Vivien Yee, Jeff Sessions Scolds California in Immigration Speech: “We Have a Problem,” N.Y. Times A22 (March 7, 2018).  The District Court has now ruled on the federal government’s preliminary […]

Over at SCOTUSblog: Kavanaugh on Administrative Law and Separation of Powers

by Chris Walker — Thursday, July 26, 2018@chris_j_walker

Over at SCOTUSblog, I have a post today examining Judge Kavanaugh’s administrative law jurisprudence and his potential impact on administrative law and regulatory practice if he were to fill Justice Kennedy’s seat on the Supreme Court. Here’s a snippet (of a nearly 4,000-word post): In reviewing Kavanaugh’s robust record on administrative law, I find myself […]

District Court Adopts Purpose-Based Approach in Emoluments Lawsuit

by Andy Grewal — Thursday, July 26, 2018

This week, a federal district court ruled that a lawsuit brought by D.C. and Maryland under the Foreign and Domestic Emoluments Clauses, against President Trump, could proceed. See D.C. v. Trump, 2018 WL 3559027 (D. Md. 2018). The decision is notable because it offers the first extended judicial interpretation of “emolument,” as that term appears […]

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The Right Thing on Risk Adjustment

by Nicholas Bagley — Wednesday, July 25, 2018

It took a crisis to spur the Trump administration to action, but it did finally act. Yesterday evening, HHS released a rule addressing a New Mexico judge’s concerns with the risk adjustment program. If all goes well—more on that in a moment—the new rule should put an end to risk adjustment fiasco. To bring you […]

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