D.C. Circuit Review – Reviewed: Chevron Waiver

by Aaron Nielson — Friday, Apr. 12, 2019@Aaron_L_Nielson

At first blush, it may look like we had a busy week in the D.C. Circuit: But not really. Four of our entries are about amending prior opinions — and the amendments are not earth shattering. In Reid v. Hurwitz, Judge Katsas clarified: “Reid was convicted of robbing a convenience store at gunpoint.” And in […]

Improving Regulatory Impact Analysis: The Role of Congress and Courts, Part 3, by Reeve Bull and Jerry Ellig

by Guest Blogger — Thursday, Apr. 11, 2019

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 […]

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The Strange and Fascinating Save the Internet Act, by Daniel T. Deacon

by Guest Blogger — Thursday, Apr. 11, 2019

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 […]

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Improving Regulatory Impact Analysis: The Role of Congress and Courts, Part 2, by Reeve Bull and Jerry Ellig

by Guest Blogger — Wednesday, Apr. 10, 2019

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  With the decline of the nondelegation doctrine, that neat distinction has become hopelessly outdated.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 […]

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Negotiating the 1967 Protocol in the Midst of the Cold War, by Robert F. Barsky

by Guest Blogger — Wednesday, Apr. 10, 2019

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 […]

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Improving Regulatory Impact Analysis: The Role of Congress and Courts, Part 1, by Reeve Bull and Jerry Ellig

by Guest Blogger — Tuesday, Apr. 9, 2019

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 […]

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Ninth Circuit Review-Reviewed: Court’s Constitutional Critics of “Crimes Involving Moral Turpitude” Should Start with Chevron, by William Yeatman

by Guest Blogger — Tuesday, Apr. 9, 2019

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 […]

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Spring 2019 Projects (ACUS Update)

by Emily Bremer — Tuesday, Apr. 2, 2019@emilysbremer

The Administrative Conference of the United States kicks off its spring committee meetings schedule this week, with new projects on: (1) Agency Guidance Through Interpretive Rules; (2) Public Availability of Agency Guidance; (3) Selection of Administrative Law Judges; and (4) Revisions to the Model Rules for Implementation of the Equal Access to Justice Act. These […]

A motley crew in Texas v. Azar

by Nicholas Bagley — Tuesday, Apr. 2, 2019

Together with Jonathan Adler, Abbe Gluck, and Ilya Somin, I’ve filed an amicus brief with the Fifth Circuit in Texas v. Azar. Those of you who’ve been closely following health-reform litigation know that Abbe and I often square up against Jonathan and Ilya. It’s a testament to the outlandishness of the district court’s decision that […]

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