In a previous post on Notice & Comment, I argued that the Obama administration leveraged a judicial settlement with Volkswagen to circumvent the Congress’s power of the purse. In this post, I argue that the same settlement also infringes on President Trump’s Article II authority. Here’s the backstory. In 2011, President Obama announced his administration’s […]
President Trump’s “Executive Order on Reducing Regulation and Controlling Regulatory Costs” has received a fair amount of attention for its “2-for-1” formula: if an agency wishes to promulgate a new regulation, it must “identify at least two existing regulations to be repealed.” But there is an additional requirement built into the executive order that has […]
In Michigan v. EPA (2015), one of Justice Scalia’s last major administrative law opinions, the Court said that the Environmental Protection Agency must consider costs, including compliance costs, when deciding whether it is “appropriate and necessary” to regulate mercury and other hazardous emissions from power plants, under the Clean Air Act. I’ve been seeing suggestions […]
On January 30, President Trump issued an Executive Order entitled “Reducing Regulation and Controlling Regulatory Costs,” which if properly implemented may herald the most significant changes in the federal regulatory process since 1981, when President Reagan instituted formal White House Regulatory Review of rules issued by Executive departments and agencies. At this stage, analysis of […]
Yale Law School Professor Nick Parrillo must have a crystal ball. His just-posted article, The Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power, seems to have anticipated today’s headlines. The controversies over Trump’s ill-considered Immigration Executive Order, Trump’s summary firing of Acting Attorney General Sally Yates for refusing to defend the […]
In the past few days a number of people have asked me about Judge Thomas Hardiman and administrative law. Each time my answer was, “Well, I actually don’t know.” There has been some good writing on Judge Gorsuch and administrative law, in particular with respect to his recently voiced skepticism toward judicial deference to agency […]
On January 30th President Trump signed an executive order mandating that most executive departments and agencies go on a regulatory diet. The EO requires agencies that create a new regulation to identify two regulations to be repealed. In FY 2017 covered agencies are required to keep the net cost of regulation to no greater than […]
The real life implications of President Trump’s immigration executive orders exploded over the weekend. On Friday, President Trump proclaimed the unwillingness of the United States to accept refugees by suspending the whole overseas refugee program for 120 days and indefinitely suspending that program for Syrian refugees. He also cut off all immigration from seven countries […]
After a six-year hiatus, legally valid recess appointments will likely return in 2017. The Constitution gives “[t]he President [the] Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” In effect, recess appointments give the President the […]
As widely reported this week, the Trump administration has apparently sent memos to several federal agencies — including the EPA, HHS, the Interior Department, and the USDA — ordering them not to issue any press releases, publish new materials on their web sites, or post on their social media accounts. The memo to the EPA apparently […]
In PHH v. CFPB, the D.C. Circuit last October held unconstitutional Congress’s decision via the Dodd-Frank Wall Street Reform and Consumer Protection Act to limit the grounds upon which a president could dismiss the director of the Consumer Finance Protection Bureau. Whether or not that ruling survives, Professors Aditya Bamzai and John F. Duffy have […]
As Aaron Nielson discussed last week, the Tenth Circuit held that the SEC’s ALJs were “inferior officers” and, as such, were not appointed correctly under the Constitution’s Appointments Clause. The SEC Commissioners improperly delegated the appointment to other SEC officials. The Commissioners, as “Heads of Departments,” can easily cure the defect by appointing the ALJs […]
This post is intended to update you on a new Administrative Conference recommendation and to ask for your assistance in expanding the research underlying that recommendation. At the December plenary session, ACUS adopted Recommendation 2016-4, “Evidentiary Hearings Not Required By The Administrative Procedure Act.” The underlying premise of Rec. 2016-4 is that there are three […]
With Republicans in control of the House, Senate, and the Presidency, they will try to pass many of their long desired proposals. However, with a narrow Senate majority and a Senate history of providing enhanced rights to the minority party, Senate Republicans will have to try nearly every legislative trick in the book to pass […]
As 2016 staggers to a close, a regulatory kerfuffle in California underscores two things about the sharing economy. First, the sharing economy – companies that provide digitally intermediated, peer-to-peer rental of goods and purchase of services – is not just a tech-bubble fad, but an increasingly integral and innovative part of the mainstream economy. Second, […]