Who decides what laws passed by Congress mean in practice? As almost everyone knows, usually the courts fulfill this role, citing Marbury v. Madison – “It is emphatically the province and duty of the Judicial Department to say what the law is.” Readers of Notice and Comment are undoubtedly familiar with the large modern exception […]
In 2017, the most powerful person in America will not be President Trump, a swing vote on the Supreme Court, or a Congressional leader, but the non-partisan Senate Parliamentarian. This is because she will be the arbiter of the budget reconciliation process. Budget reconciliation is a method of passing legislation in the Senate that avoids […]
On February 8, 2016, the ABA adopted recommendations to revamp the APA’s informal rulemaking provision, 5 U.S.C. § 553. In its Report to the President-Elect, the ABA Section on Administrative and Regulatory Law has urged the Trump administration to endorse those revisions (pages 10-11). The provisions have been summarized previously in this blog here. Section […]
The President-elect already seems quite likely to be re-elected, if the screeching disarray of his enemies is any guide. It is therefore not too early to indulge in speculation about the course of administrative law in the Age of Trump. I’ll outline two different futures that seem thinkable to me — not only logically possible, […]
This blog post is one in a series of posts discussing the 2016 Report to the President-Elect that American Bar Association’s Section of Administrative Law and Regulatory Practice issued shortly before the presidential election. In this post, I will discuss the recommendation that the President ensures that all agency guidance documents are made available online […]
Proposals for regulatory reform featured prominently in the run-up to the 2016 election and will likely continue to receive very close attention in the new administration. As Emily Bremer highlighted in her introduction to this symposium, the American Bar Association’s Section of Administrative Law and Regulatory Practice prepared a report for both presidential candidates in […]
A Trump administration is unlikely to be supportive of three of the four recommendations relating to adjudication in the Report to the President-Elect by the ABA Section on Administrative Law and Regulatory Practice. Considering these recommendations (though not in the order they were presented in the ABA’s letter): 1) The Ad Law Section urged the […]
Among the ABA AdLaw Section’s recommendations in its bi-partisan Report to the President-Elect sent to both candidates before the election was this one concerning OIRA’s administration of Executive Order 12,866: Third, we urge you to ensure appropriate transparency in White House oversight of agency rulemaking through OIRA. From their beginning, the Executive orders creating a […]
Over the past two weeks, I have been asked more times than I can count how the Trump Administration can unravel the Obama Administration’s policies. My answer usually falls into one of three categories. First, policies that were instituted through guidance documents, such as executive memoranda and “Dear Colleague” letters, which I’ve called Government by Blog […]
While many things in Washington will change as a result of last Tuesday’s results, one thing that will not change is the importance of the D.C. Circuit. The nation’s leading administrative law court will continue to review agency actions in the Trump era, including actions based on agency interpretations of the statutes they administer. And […]
Proxy access is the ability of certain privileged shareholders to have their own slate of director nominees included in the company’s proxy materials whether or not the board of directors (Board) approves. Proxy materials include a proxy statement used to solicit shareholder votes and a voting card, which allows shareholders to vote without attending the […]
There are apparently swirling rumors that the Trump people, and Republican senators, may agree to enact the Separation of Powers Restoration Act of 2016. The Act, having passed the House, is now before the Senate Judiciary Committee. It instructs courts, inter alia, to “decide de novo all relevant questions of law, including the interpretation of […]
In PHH Corporation v. Consumer Financial Protection Bureau, the U.S. Court of Appeals for the D.C. Circuit, in an opinion by Judge Brett Kavanaugh, held that it was unconstitutional for the CFPB to be headed by a single Director who could not be removed by the president without cause. The consequences of the court’s decision […]
In the past 24 hours,* calls for Donald Trump to abandon his bid for the White House have swelled. While the odds of him doing so willingly still seem long, they are not negligible; who knows what they will be by early next week, after the second debate between Trump and Hillary Clinton. No matter the […]
On 28th June, the Department of Justice, Environmental Protection Agency, and Volkswagen proposed a judicial settlement to partially resolve the automaker’s Clean Air Act violations associated with the sale of almost 500,000 2.0 liter diesel engines that were equipped with “defeat devices.” While no one—not even Volkswagen—disputes the company’s misdeeds, the proposed partial consent […]