Last week, the acting director of the Office of Management and Budget (OMB) issued a memorandum to all agencies regarding compliance with the Congressional Review Act (CRA). This memo supersedes one issued in 1999 and pulls independent regulatory agencies – specifically designed by Congress to be less prone to political interference than executive agencies – into a […]

After two years in office, the numbers are clear. The Trumps administration has accomplished an astonishing rate of deregulation of public health and environmental protections. When the president issued Executive Order 13771 (entitled “Reducing Regulation and Controlling Regulatory Costs”), he announced a goal of requiring all federal agencies to embark on two deregulatory actions for […]

Part III—The Role of the Courts Much as agencies prepare higher quality RIAs when Congress issues relatively specific instructions directing them to perform certain types of economic analysis and to take account thereof when issuing proposed rules, the courts also more carefully scrutinize agencies’ rulemaking records in the face of such specific statutory language. In […]

The House of Representatives on Wednesday passed the Save the Internet Act of 2019.  In broad strokes, the bill would restore the Obama-era FCC’s order that classified Internet service providers as “telecommunications carriers” subject to regulation under Title II of the Communications Act and imposed a set of net neutrality rules on ISPs pursuant to […]

Part II—The Role of Congress Under traditional principal-agent conceptions of the administrative state, Congress is responsible for making policy decisions (legislating) and agencies are then responsible for filling in the details and carrying out Congress’s intent (administering).  With the decline of the nondelegation doctrine, that neat distinction has become hopelessly outdated.  When Congress provides directives […]

I have been engaged in a review of documents that in my opinion constitute the travaux préparatoires to the 1967 Refugee Protocol. This repository is unexpectedly rich, and in the preceding three blog posts devoted to this research, I have made a number of claims about its historical, political, sociological and legal importance. First, these […]

Part I—The Rise of Regulatory Impact Analysis The concept of disciplining regulatory choices through the application of benefit-cost analysis to regulatory decisionmaking is largely an American innovation.  As Jim Tozzi has shown, the idea of economic assessment of proposed rules goes back to the Johnson Administration.  Presidents Carter and Reagan issued the executive orders that […]

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” On 28th March, in a thoughtful concurring opinion to Aguirre Barbosa v. Barr, Judge Marsha Berzon “join[ed] the chorus of voices calling for renewed consideration as to whether the phrase ‘crime involving moral […]