Although recent news has overshadowed the once-raging debate behind Matthew Whitaker’s appointment as acting Attorney General, the debate will soon reappear atop news feeds as a federal court in Maryland holds a hearing on the legality of the appointment on December 19th. At the same time, challenges to Mr. Whitaker’s appointment have been brought before […]
Author Archives: Guest Blogger
The Administration’s Recent Guidance on State Innovation Waivers under the Affordable Care Act Likely Violates the Act’s Statutory Guardrails, by Joel McElvain
The Affordable Care Act reformed the individual health insurance market to protect persons with pre-existing conditions. Insurers who participate in this market must sell plans with a standard set of comprehensive benefits, and may not deny coverage to, or impose higher premiums on, persons with pre-existing conditions. Through legislative, regulatory, and litigation efforts, the Trump […]
Ninth Circuit Review-Reviewed: Inaugural Edition, by William Yeatman
In a recent post, Prof. Aaron Nielson noted that Notice & Comment once considered starting a “D.C. Circuit Review–Reviewed-style column for the Ninth Circuit.” This sounded like a great idea to me, so I reached out to the editors and volunteered for the part. Henceforth, on the 9th of every month, I’ll report on the […]
Is Matthew Whitaker’s Appointment Constitutional? An Examination of the Early Vacancies Acts, by Thomas Berry
A debate is raging and litigation has already begun over whether President Trump’s selection of Matthew Whitaker to serve as acting attorney general is constitutional. Just recently, three Democratic senators filed suit arguing that Whitaker’s appointment has unconstitutionally deprived them of their right to vote on his nomination. As this debate unfolds, one crucial piece […]
Scrutinizing Trump’s Taxes is in Congress’s Power, by U.S. Rep. Bill Pascrell, Jr.
I read with great interest Andy Grewal’s recent post on plans by House Democrats to compel the release to Congress of Donald Trump’s tax returns. As a Democratic Member of the House of Representatives and the leader of my caucus’s efforts to expose Trump’s financial records to sunlight, I felt it appropriate to respond to […]
The Other Birthright Citizenship Question—Who Decides?, by Gillian Chadwick & David S. Rubenstein
President Trump sparked a frantic response from advocates and scholars this week when he announced that he could terminate birthright citizenship for children of undocumented parents with an executive order. The bulk of that response has focused on the question of what the Constitution means with respect to birthright citizenship. The other question raised by […]
A Day in the Life of an Administrative Law Nerd, by Kathryn E. Kovacs
When my conference was canceled, I rejoiced. A free day in Washington, D.C.! The last time I was in Washington, an unprecedented windstorm foiled my plans. This time, hurricane Florence was bearing down on the Carolinas, but it turned away from Washington. It was meant to be: a day at the National Archives and the […]
Fallout from Lucia – Radioactive?, by William Funk
Readers of Notice & Comment are undoubtedly familiar with Lucia v. Securities and Exchange Commission, in which the Supreme Court held that Administrative Law Judges (ALJs) in the SEC were inferior officers, not employees. As a result, they had to be appointed in accordance with the Appointments Clause of the Constitution. In relevant part, that […]
Bad Faith and the Record Rule, Richard J. Pierce, Jr.
There has been a recent explosion of disputes in which the Supreme Court must decide when there is evidence of bad faith that is powerful enough to justify a reviewing court’s decision to allow a petitioner to rely on extra-record evidence or to develop extra-record evidence as part of the basis for review of an […]
Grammar Teachers at the Supreme Court, by Jamie Durling
Many commentators, including a former law clerk, have described Justice Gorsuch as a devoted grammarian. In his first Supreme Court opinion, for instance, Justice Gorsuch dismissed one party’s argument by writing that its interpretation “doesn’t follow even as a matter of good grammar, let alone ordinary meaning.” Henson v. Santander Consumer USA Inc., 137 S. […]