President Trump recently wrote a letter to Congress explaining why he will eliminate the scheduled cost-of-living adjustments (COLA) for federal employees. President Trump argued that “[w]e must maintain efforts to put our Nation on a fiscally sustainable course, and Federal agency budgets cannot sustain such increases.” However, President Trump’s decision to withhold the COLA is likely illegal. […]
Shortcuts in the Process of Issuing or Repealing Rules, by Richard J. Pierce, Jr.
An agency cannot issue, amend, or rescind a legislative rule without first conducting a notice and comment proceeding (N&C) unless it can find an applicable exemption from the N&C procedure. The N&C process has become so lengthy and resource-intensive that agencies are increasingly desperate to find an applicable exception. Moreover, Congress sometimes shares agencies’ frustration […]
Update: Litigation Challenging Trump’s Regulatory “Two-for-One” EO
You might recall that nine days after President Trump issued Executive Order 13,771, a set of influential interest groups filed a lawsuit in the U.S. District Court for the District of Columbia. That challenge, filed by Public Citizen, Inc., Natural Resources Defense Council, Inc., and Communications Workers of America, AFL-CIO on February 8, 2017, is still […]
Proposed Reform of House Rules Would Not Be Enforceable
With many Democrats already opposing Nancy Pelosi as speaker and many Republicans having already opposed Kevin McCarthy as speaker, whichever party wins the House of Representatives could struggle to get the 218 votes required to win a Speaker of the House election. Seeing an avenue to exchange their votes for reform, the bipartisan Problem Solvers […]
D.C. Circuit Review – Reviewed: “All-Purpose” Feeder Judges
The D.C. Circuit — hurrah! — did not decide any cases this week. Even if it had, no doubt the big news would be Judge Kavanaugh’s* upcoming confirmation hearings. That is the context for this week’s post. There is something about Judge Kavanaugh’s record that I don’t think has received enough attention. He is a […]
Welcome to the United States: Installing GPS Tracking Devices at the Border
“Like the Internet, the [Global Positioning System (“GPS”)] is an essential element of the global information infrastructure,” and “is now in everything from cell phones and wristwatches to bulldozers, shipping containers, and ATM’s.” GPS Applications, GPS.gov. But, as Justice Brandeis predicted in his famous Olmstead dissent, technological advances augur challenges to individual privacy. Olmstead v. […]
“Hard Look” and “Proceduralized” Review: The Saga of the Abu Ghraib Photographs, 2009 to Present
Between October and December 2003 U.S. military personnel engaged in “sadistic, blatant, and wanton criminal abuse” of Iraqi detainees at Abu Ghraib prison. See, Seymour M. Hersh, Torture at Abu Ghraid, THE NEW YORKER (May 10, 2004). Photographs and videos recorded the abuse; a few were published when the abuse was first reported. See, id. […]
D.C. Circuit Review – Reviewed: Why I Fear the D.C. Circuit’s Approach to Clerkship Hiring is Misguided
Here is a blog post I wish I could take back: “Five Years After the Death of the Clerkship Plan.” My post, from February of this year, concerned a (then) long-time feature of the D.C. Circuit’s homepage: The backstory is that in 2013, the D.C. Circuit officially withdrew from the “Law Clerk Hiring Plan,” which […]
The New SALT Regulations Need a Few More Sprinkles
After Congress passed the Tax Cuts and Jobs Act, several states adopted a charitable contribution strategy to help their residents avoid the new Section 164 deduction limits for state and local tax payments. Under the strategy, taxpayers would make donations to state-controlled funds and receive state tax credits for those donations. Taxpayers would then use […]
In-House Regulators: A Theory of Ossification Inside Regulated Entities, by Kirby M. Smith
As administrative law scholars have long noted, the structure of administrative law—and administrative agencies—has a powerful status quo bias. Ossification slows a deregulatory process, and burrowing may exacerbate deregulation’s lethargic pace. In other words, deregulating is difficult. But regulation also affects the structure of regulated firms. New regulation causes observable changes within firms. And in […]