Author Archives: Guest Blogger

The Obstruction Statute as Structural Law, by Aneil Kovvali

by Guest Blogger — Monday, July 24, 2017

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 […]

Agencies’ Responsibilities to Inform Congress: Two Perspectives, by Brian D. Feinstein

by Guest Blogger — Tuesday, July 11, 2017

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 […]

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Which Sovereign Merits Arbitrary & Capricious Deference in Clean Air Act Federalism Disputes?, by William Yeatman

by Guest Blogger — Tuesday, July 11, 2017

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

by Guest Blogger — Monday, July 10, 2017

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

by Guest Blogger — Monday, July 10, 2017

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

by Guest Blogger — Wednesday, July 5, 2017

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

by Guest Blogger — Thursday, June 29, 2017

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 […]

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Constitutional Avoidance and Presidential Power, by Aneil Kovvali

by Guest Blogger — Monday, June 26, 2017

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

by Guest Blogger — Friday, June 23, 2017

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 […]