Author Archives: Daniel Hemel

Maybe the Trump Administration Does Have Statutory Authority To Continue Paying Cost-Sharing Subsidies After All

by Daniel Hemel — Tuesday, Oct. 17, 2017

California and 17 other states are suing the Trump administration to stop it from cutting off cost-sharing reduction (CSR) payments to health insurers under the Affordable Care Act. (Note that this is different from the strategy that Tom Baker and I proposed this past April, and that I wrote about in the Washington Post yesterday, which would involve states paying the insurers themselves […]

Trump Can’t Revoke DACA Without Going Through Notice and Comment

by Daniel Hemel — Tuesday, Sept. 5, 2017

President Trump is expected to announce today that his administration will end the Deferred Action for Childhood Arrivals (DACA) program, which allows undocumented immigrants who arrived in the United States before their 16th birthday to obtain work permits and certain other federal benefits. DACA beneficiaries, commonly known as “Dreamers,” are likely to challenge Trump’s decision […]

This entry was tagged .

Partisan Balance Requirements From Carter to Obama (and Trump)

by Daniel Hemel — Friday, Aug. 11, 2017

This post by Brian Feinstein and Daniel Hemel is based on the authors’ draft article, Partisan Balance With Bite, which is forthcoming in the Columbia Law Review. President Trump last week nominated two individuals to the Federal Energy Regulatory Commission: Kevin McIntyre and Richard Glick. McIntyre is an unsurprising choice: he is a partner at […]

The Russia Sanctions Bill Is Unconstitutional — and Unnecessarily So

by Daniel Hemel — Tuesday, July 25, 2017

The bill to impose sanctions on Russia for meddling in the 2016 election—which passed the Senate by a 98-2 vote in June and passed the House by a 419-3 margin this afternoon—is unconstitutional. Unnecessarily unconstitutional. Indeed, the bill’s unconstitutionality is so gratuitous that one wonders whether it resulted from a mere oversight or whether it […]

Why Hasn’t Rod Rosenstein Recused Himself From the Russiagate Probe?

by Daniel Hemel — Sunday, May 21, 2017

Deputy Attorney General Rod Rosenstein should recuse himself from the probe into the Trump campaign’s ties to Russia and the President’s apparent attempt to obstruct the FBI’s inquiry. Rosenstein himself played a key role in the events at the center of the controversy, and his continued involvement casts a shadow over the ongoing investigation. So […]

This entry was tagged .

Faith in the Ninth Circuit

by Daniel Hemel — Thursday, Mar. 16, 2017

The Ninth Circuit’s decision to deny en banc review in Washington v. Trump was not, of course, the biggest development yesterday in litigation related to the President’s executive orders restricting entry from seven six overwhelmingly Muslim countries. But the Ninth Circuit’s denial of reconsideration—and, more specifically, Judge Bybee’s dissent from the denial—is worthy of attention […]

Repealing Economic Substance Codification and Replacing It With What?

by Daniel Hemel — Monday, Feb. 20, 2017

The Republican effort to repeal the Affordable Care Act appears to be stalling. If and when it picks up again, the fate of section 7701(o) of the Internal Revenue Code will be far from the most consequential issue at stake. But section 7701(o), the provision added by the ACA that codifies the tax law economic […]

The Tenth Circuit vs. Brand X

by Daniel Hemel — Wednesday, Aug. 24, 2016

In the 2005 Brand X decision, the Supreme Court held that “[a] court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet […]

The Chamber of Commerce Has an Anti-Injunction Act Problem, by Daniel Hemel

by Daniel Hemel — Saturday, Aug. 6, 2016

The Chamber of Commerce filed a lawsuit in federal district court in Texas Thursday seeking to block the Treasury Department’s April 2016 inversion regulations. The Chamber says that the inversion regulations exceed Treasury’s statutory jurisdiction, that the regulations are arbitrary and capricious in violation of the Administrative Procedure Act (APA), and that Treasury failed to follow the APA’s […]

Maybe the IRS Is Complying with the Congressional Review Act After All, by Daniel Hemel

by Daniel Hemel — Thursday, June 30, 2016

My co-blogger Andy Grewal asked in a post on Tuesday: “Why doesn’t the IRS comply with the Congressional Review Act?” My first thought on reading Andy’s post was: “Yeah, why doesn’t it?” My second thought was: “Maybe it does.” The Congressional Review Act, passed in 1996, allows the House and Senate to block certain federal […]

This entry was tagged .