In a recent working paper and op-ed, Professors Daniel Hemel and Eric Posner argue that the federal statute banning obstruction of justice applies to the president, and that the president would violate the statute if he intervened in an investigation to advance his personal interests. Hemel and Posner suggest that this can be reconciled with […]
Author Archives: Guest Blogger
Double-dawg Deference: Deferring to Legal Interpretations based on Deferred-to Facts, by Gus Hurwitz
The recent deadline for comments in the FCC’s latest NPRM relating to the Open Internet has me thinking about an article I have spent the past two years looking for time to write. Indeed, I had hoped that Evan Bernick’s recent piece on the constitutionality of agency fact-finding would give me the push I needed […]
Agencies’ Responsibilities to Inform Congress: Two Perspectives, by Brian D. Feinstein
That the executive branch must provide information to Congress is well-established. The Constitution obliges the President to “give to the Congress Information of the State of the Union.” Executive agencies are required by statute to submit over 4,000 reports to Congress annually. Congress’s committees hold hundreds of days of oversight hearings every year. But how […]
Which Sovereign Merits Arbitrary & Capricious Deference in Clean Air Act Federalism Disputes?, by William Yeatman
The Clean Air Act assigns certain fact-based judgments to the EPA, such as setting industry-wide New Source Performance Standards or Maximum Achievable Control Standards. And the Act assigns other such decisions to the states, subject to federal review, including case-by-case determinations of Best Available Control Technology and Best Available Retrofit Technology. This post seeks to […]
Immigration Administrative Processing: FOIA Response from Department of State, by Shoba Sivaprasad Wadhia
In April 2014, the Center for Immigrants’ Rights Clinic (on behalf of Maggio & Kattar) filed a FOIA request seeking information about the Department of State’s Administrative Processing Program. This same year, we researched and prepared a “Frequently Asked Questions” document that is available here. Administrative processing, also known as Security Advisory Opinion (SAO), is […]
Scrubbing Away Transparency and Our Immigration Resources, by Geoffrey A. Hoffman
The EOIR Benchbook, as well as other resources, such as Asylum Officer Basic Training lesson plans and now parts of the Department of State’s Foreign Affairs Manual, have been scrubbed from official federal websites. It shows a disturbing trend toward lack of transparency and accountability. It begs the question, does it mean the judges are no longer […]
What the Law Is vs. What the Executive Is Willing to Argue: Understanding the Stakes of the Emoluments Debate, by Jane Chong
Editor’s Note: This post is a response to a recent post by Andy Grewal. Three lawsuits recently filed against President Donald Trump for allegedly unlawfully profiting from his financial empire do more than breathe new life into some obscure constitutional provisions. They serve as an important reminder that, under the Trump administration, the battle over […]
The “Business of Banking” in New York – An Historical Impediment To the OCC’s Proposed National “Fintech Charter,” by Daniel S. Alter
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 […]
Constitutional Avoidance and Presidential Power, by Aneil Kovvali
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 […]
“Passing the Buck” in Agency Adjudication, by Bijal Shah
Agencies often share their power with one another—the operative word being ‘share.’ For instance, they engage in “joint rulemaking” with other agencies on the basis of shared statutory authority. They also participate in “coordinated interagency adjudication,” in which they subdelegate portions of their power to adjudicate administrative claims or otherwise share the responsibility of furthering an adjudication process on […]