Editor’s Note: This is a cross-post from Davis Polk’s FinRegReform blog. It is also the second post in a series of two. The Treasury Department’s recent report on capital markets regulation includes a robust discussion of equity market structure issues. The report does not break new ground or raise issues that have not been debated previously at length, […]
Editor’s Note: This is a cross-post from Davis Polk’s FinRegReform blog. It is also the first post in a series of two. The U.S. Treasury’s new Capital Markets Report recommends additional administrative requirements for regulatory actions by the SEC and the CFTC (the “Agencies”). If adopted, the process by which the Agencies issue new regulations and guidance […]
Much has been said about Rosa María Hernández, the latest target of the Trump administration’s immigration policies. The Department of Homeland Security (DHS) has the responsibility and authorization to enforce the immigration laws against those inside the United States without authorization. However, the government’s choice to target a ten-year old girl with cerebral palsy on her […]
Effective federal regulation has long been informed by scientific experts external to government. Since 1972, the Federal Advisory Committee Act (FACA) has operated to ensure that this external expertise is offered transparently and in a fair, balanced manner. The question explored in this post is whether our administrative law procedural safeguards are adequate to ensure […]
This doctrine, formerly known only to specialists, will play a large role under Trump. During the Gorsuch nomination, there was a lot of talk in the press about the Chevron doctrine. Most people have never heard of this doctrine, and only a few are aware of all the nuances. As the Trump Administration’s rulemaking efforts come before […]
The judicial review provision of the APA, 5 U.S.C. § 706, provides that “To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” Many commentators focus on the way […]
Republicans have tried to use the reconciliation process to change/repeal the Affordable Care Act (Obamacare). Despite voting on several proposals, Republicans have not been able to get 50 votes to pass any legislation under reconciliation. The Senate parliamentarian recently declared that at the end of the fiscal year, September 30, the reconciliation instructions Republicans could […]
In June, the D.C. Circuit vacated part of an FCC order regulating inmate phone rates. The majority opinion focused on the FCC’s statutory jurisdiction over intra-state phone provision. But as Aaron Nielson noted on this blog, administrative law watchers may be interested in the opinion for its odd treatment of Chevron deference. As I suggest […]
Future Congressional Budget Office (CBO) estimates of healthcare legislation, even identical legislation to what CBO has already reviewed, may be vastly different because of the peculiarities of the reconciliation process. Despite the recent failure of healthcare legislation, President Trump has advocated for Republicans to pass a healthcare bill to replace the Affordable Care Act. However, […]
Federal oversight of the banking industry generally takes place through bank examinations. A bank examination is a confidential, non-public dialogue between a regulator and a bank about the bank’s policies and practices. During this dialogue, bank examiners and banks depend on a federal rule known as the bank examination privilege. However, this rule is beginning […]
Nearly fifty years ago Alan Schmid, a visiting professor working at the Office of the Secretary of the Army, made a game changing announcement to his colleagues in the Systems Analysis Group housed in the Pentagon. Schmid argued that the then use of benefit-cost analysis, which was applied to capital expenditure projects such as dams […]
The conclusion of briefing in Citizens for Responsibility and Ethics in Washington (“CREW”) v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 1:17-cv-00458 (Southern District of New York, filed January 23, 2017), the first filed of three Foreign Emoluments Clause cases, is now almost in […]
Last week, the president signed the Countering America’s Adversaries Through Sanctions Act. Among other things, the act codifies sanctions against Russia into statutory law and provides that the president must navigate a congressional review process before waiving or terminating those sanctions. In an accompanying signing statement, the president attacked the congressional review provision as unconstitutional, […]
The Presidential Advisory Commission on Electoral Integrity (“the PACEI” or “the Commission”), created by President Trump to study state voter registration and voting procedures used in federal elections, Executive Order No. 13,799, 82 Fed. Reg. 22,389 (May 11, 2017), has begun its work in controversy and litigation. This post focuses on the Commission’s power to […]
The shift in focus from healthcare to tax reform will mean that the little known Joint Committee on Taxation (JCT) will soon play a starring role. During discussions about healthcare reform, the Congressional Budget Office (CBO) played an important role in estimating how many people would be insured under competing Republican proposals. With the shift […]