When regulated entities or the public want to know what a regulation means, where do they look? They will, of course, focus on the text of the regulation. But what other sources bear on how regulations apply? In particular, what is the most authoritative source agencies issue to assist in determining the meaning and application […]
For a democracy to function even a little bit like it should, the public needs to know what the government is up to. A robust press is one mechanism. FOIA is another. But the most obvious is for the government just to tell the public about its projects and plans. Unfortunately, while the government has […]
Would you like to hear from the government? Many people might say no. Or at least, not usually. But, of course we hear from the government all the time. Many times, this contact comes from administrative agencies. Agencies shape, among many other things, the air we breathe, the taxes we pay, and the question of […]
Historically, rulemaking has been defined by dense text and linear analysis. Yet, during the Obama administration, a colorful new visual rulemaking universe emerged—one that splashed rulemaking-related images, GIFs, and videos across social media channels. Agencies, interested stakeholders, and President Obama himself used sophisticated visual tools to develop and engender support for—or opposition to—high-stakes federal rulemakings. […]
In a late December split decision, In Re A Cmty. Voice, et al. v. U.S. Envtl. Prot. Agency, the U.S. Court of Appeals for the Ninth Circuit sharply expanded an agency’s responsibilities under APA § 555(b), which requires that “within a reasonable time, each agency shall proceed to conclude a matter presented to it.” The […]
As Chris Walker generously highlighted in an earlier post, I have written a forthcoming article on a separation-of-powers question I think has received insufficient attention: the extent of Congress’s authority to control executive constitutional authorities through restricted or conditional appropriations. For those interested, I have summarized my main arguments in prior posts on the Take […]
Professor Andrew Rudalevige of Bowdoin College has written two articles on the creation of the Office of Information and Regulatory Affairs (OIRA): one just published in the 2018 Winter Edition of National Affairs (Number 34) and the other an earlier and more-detailed presentation published by the Midwest Political Science Association. Professor Rudalevige concludes: Presidential authority […]
Many federal agencies have the authority to bring civil complaints against individuals accused of violating applicable statues or regulations. Those agencies also have the authority to enter into settlement agreements with the accused defendants. The Commodity Futures Trading Commission (“CFTC”) and Securities and Exchange Commission (“SEC”) both have a policy of requiring a provision in […]
On Friday, November 24, Consumer Financial Protection Bureau Director Richard Cordray named Leandra English, the longtime CFPB Chief of Staff, to the post of Deputy Director. Based on legislation specific to the CFPB, that put her in a position to serve as Acting Director upon his departure. Cordray then resigned. A few hours after Cordray […]
Who’s the legal acting director of the Consumer Financial Protection Bureau? Is it Leandra English, whom former director Richard Cordray appointed under his statutory authority as deputy director? Or is Mick Mulvaney, whom President Trump has appointed under the Federal Vacancies Reform Act (FVRA)? It’s a difficult legal question that only administrative-law scholars could love. […]
Tomorrow, the Supreme Court will hear arguments in Oil States vs. Greene’s Energy Group, et al. on whether the Patent and Trademark Office, acting through the Patent and Trial Appeal Board (PTAB), can decide the validity of existing patents. The question, in particular, is whether the PTAB is unconstitutionally extinguishing private property rights in a […]
This past summer, in Kokesh v. SEC, the Court scaled back the SEC’s power to recover the profits earned by defendants’ illegal activities, holding that judicial disgorgement brought by the agency constitutes a penalty for the purpose of the 5-year statute of limitations in 28 U.S.C. § 2462. While the holding attracted some headlines, a […]
Almost immediately following his entry into the Oval Office, President Donald J. Trump initiated an aggressive regulatory reform agenda intended to downsize the imprint and reduce the influence of the Federal government. Through a series of executive orders, supported by guidance from the Office of Management and Budget (OMB), and his proposed budget to Congress, […]
This Friday, November 10, 2017, the Notre Dame Law Review will be hosting its annual symposium. Entitled “Administrative Lawmaking in the 21st Century,” the proceedings will be published in Volume 93 of the Law Review, but are of immediate interest to Notice and Comment readers. The slate of presenters is a veritable “who’s who” of […]
Last Wednesday, President Trump signed his fifteenth congressional resolution disapproving a federal regulation. This was notable not only because, prior to this year, only one such resolution had ever been enacted, but also because it was the first time a president had disapproved a regulation issued during his own tenure. This, along with new opinions […]