Pursuant to the Congressional Review Act (“the CRA”), Congress can adopt, with the President’s concurrence, a resolution disapproving an agency rule within 60 days of notification that the rule has been adopted.  Section 801(b)(2) of the CRA provides that disapproval resolutions preclude the agency from adopting “a new rule that is substantially the same as” […]

Summary:  This post discusses a recent decision holding that agency official’s web browsing histories, generated automatically by a web browser, are not “agency records” under FOIA. “You are what you read. The information that you input into your mind informs your thinking patterns, and it influences . . . the decisions you make, the work […]

The Congressional Review Act (“the CRA”)[1] establishes an expedited legislative process for preventing final agency rules from going into effect.  It provides a sixty-day period for Congress to adopt and the President to sign a resolution disapproving an agency rule.  5 U.S.C. §802(a).  If a disapproval resolution is adopted, the agency can neither “reissue [the […]

Several states and municipalities, including the City of Philadelphia, have adopted laws prohibiting employers from asking prospective employees for their wage and salary history.[1]  Such statutes and ordinances are designed to attack persistent wage disparities between White and non-White as well as male and female employees.  The Greater Philadelphia Chamber of Commerce challenged the Philadelphia’s […]

Today the Third Circuit issued an opinion regarding application of exhaustion requirements to Lucia v. SEC, 138 S. Ct. 2044 (2018), challenges to Social Security Administration ALJs – Cirko v. Commissioner, 2020 WL 370832. Lucia decided that the SEC’s ALJs were officers of the United States, and thus that their appointments were unconstitutional because the […]

This two-part series discusses Smith v. U.S. Immigration & Customs Enforcement, involving ICE’s policy for responding to FOIA requests made by fugitive aliens.  My first post discussed the policy’s inconsistency with FOIA Exemption 7(A).  This post discusses whether the “fugitive disentitlement doctrine.” The Fugitive Disentitlement Doctrine In Ortega-Rodriguez v. U.S., 507 U.S. 234 (1993), the […]

This two-part series discusses Smith v. U.S. Immigration & Customs Enforcement, involving ICE’s policy for responding to FOIA requests made by fugitive aliens.  This post discusses the policy’s inconsistency with FOIA Exemption 7(A), which allows agencies to withhold law enforcement records that “could reasonably be expected to interfere with enforcement proceedings.”  The second post discusses […]

Summary:  This post discusses a recent decision holding that agency official’s web browsing histories, generated automatically by a web browser, are not “agency records” under FOIA. “You are what you read. The information that you input into your mind informs your thinking patterns, and it influences . . . the decisions you make, the work you […]

On October 31, 1979, forty years ago this week, the Department of Commerce published its Model Uniform Products Liability Act (now commonly referenced as the “Uniform Product Liability Act”) in the Federal Register, 44 Fed. Reg. 62714 (1979).  “The Commerce Department?,” you might respond with bemusement.  Ordinarily uniform and model state laws are crafted by […]

As Aaron Nielson has noted, two new Executive Orders were issued yesterday.  He has described some of the major provisions.  But, in addition, there are provisions in the “Executive Order on Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication” regarding government inspections and information collection. With respect to […]

As noted in prior posts (here and here), the Supreme Court radically altered the long-accepted scope of Freedom of Information Act (“FOIA”) Exemption 4 in Food Marketing Institute v. Argus Leader Media, 139 S.Ct. 2356 (June 24, 2019). On October 3, the Department of Justice’s Office of Information Policy (“OIP”) released guidance to agencies regarding […]

Summary:  Does the federal government’s delegation of its power to take property by eminent domain to private entities allow such entities to bring a federal or state action to acquire state-owned property (despite states’ “Eleventh Amendment” immunity? The Natural Gas Act (“NGA”), 15 U.S.C. §§ 717–717z, allows private gas companies to exercise the federal government’s […]

FOIA Exemption 3 allows agencies to withhold documents in response to FOIA requests regarding “matters that are … specifically exempted from disclosure by statute.” 5 U.S.C. § 552(b)(3)(A).  To be “specifically exempted” by statute, the statute must (i) prohibit disclosure “in such a manner as to leave no discretion on the issue,” or “(ii) establishe[] […]