This year the Supreme Court prohibited the Trump Administration from undoing the Obama Administration’s “DACA” policy without first providing a more thorough justification; a year earlier it prohibited the Trump Administration from adding the citizenship question without first providing a more candid justification. The common line connecting the cases is clear, and it suggests a trend of slight reinvigoration of judicial […]
This morning the Supreme Court issued its decision in Department of Homeland Security v. Regents of the University of California—better known as the DACA Repeal Case. In striking down the Trump Administration’s effort to rescind the Obama Administration’s immigration enforcement policy, Chief Justice Roberts’s opinion for the Court highlighted the Court’s role in scrutinizing agency […]
By the time he actually signed it, President Trump’s “Executive Order on Preventing Online Censorship” was no surprise. His complaints about social media platforms, and his calls for Congress to rescind Internet platform companies’ immunity under Section 230 of the Communications Decency Act, are long-familiar refrains. More recently, he practically shouted his intentions to take […]
Yesterday the White House issued a new executive order titled “Executive Order on Regulatory Relief to Support Economic Recovery.” It is intended, most immediately and obviously, to amplify the economic recovery so sorely needed amid the Covid-19 crisis. But President Trump’s order could have significant long-term effects, because it contains what we can think of […]
A few weeks ago, the C. Boyden Gray Center for the Study of the Administrative State announced its 2020–2021 agenda for research roundtables. Today we are calling for papers for the first two Autumn 2020 roundtables, both related to the Covid-19 outbreak: [T]he Gray Center’s first two research roundtables will focus on lessons learned from […]
How much power does the Constitution give the President to fire the heads of departments, and what does this imply about lower-level civil servants who staff those departments? The former question has been debated since the First Congress, of course; and the latter question since the Pendleton Act. And both questions are once again in the […]
The Administrative Conference’s forum on nationwide injunctions certainly is well-timed. Just days ago, the Court published Justice Gorsuch’s concurring opinion in Department of Homeland Security v. New York, questioning the constitutionality of “nationwide injunctions” against the federal government. “Whether framed as injunctions of ‘nationwide,’ universal,’ or ‘cosmic’ scope,” Gorsuch wrote, “these orders share the same […]
In Seila Law v. CFPB, the Supreme Court will consider whether the CFPB Director’s for-cause removal protection—removal only for “inefficiency, neglect of duty, or malfeasance in office”—unconstitutionally detracts from the President’s executive power. But to decide that issue, doesn’t the Court need to first decide what “inefficiency,” “neglect of duty,” or “malfeasance in office” actually […]
On New Year’s Eve, you weren’t the only one making resolutions for the year ahead. GSA published an interesting notice in the Federal Register, seeking comments on how to modernize Regulations.gov. Here are the key lines from GSA’s notice: GSA’s Office of Regulation Management, within OGP, is interested in conducting a dialogue with the public, […]
For all of its encouraging moments, the Justice Department’s “Summit on Modernizing the Administrative Procedure Act” was also replete with reminders that the difficulties of modern administrative law are in large part the ramifications of the light-handed Nondelegation Doctrine. When agencies are given enormous power, we reliably reach for auxiliary precautions to encourage steady, accountable […]
The Justice Department’s recent “Summit on Modernizing the Administrative Procedure Act” proved to be a great step toward the goal of reforming the APA to reflect and respond to modern administrative reality. If you were interested in the event but couldn’t attend, then you can find the videos online: here, here, and here. The text […]
On Friday, the Gray Center for the Study of the Administrative State will host a day-long conference on “Technology, Innovation, and Regulation.” It’s an admittedly broad topic. What we have in mind are twin questions: How does regulation affect technological innovation? And how does technological innovation affect regulation? We’ll be focusing on specific issues regarding social […]
We often think of the modern system of White House regulatory oversight, centered around the Office of Information and Regulatory Affairs, as a well-established framework. And of course, the nearly 40-year-old OIRA has become a significant and respected institution. But against the backdrop of our nearly 250-year-old republic, OIRA is still a very young institution. […]
With the Supreme Court justices returning to the bench next month, it’s time to look ahead to the coming year’s cases. Last year, the Court ended its term with a trio of cases involving major administrative law issues: Gundy v. United States, Kisor v. Wilkie, and Department of Commerce v. New York. In the year to come, what […]
In an era when our politics seems to leave us all deeply divided, the Supreme Court’s end-of-Term flurry of agency-related decisions is a welcome reminder of how much we agree on. The challenge, of course, is that we don’t express our agreements simultaneously. But they’re there. We want courts to create new doctrines of skeptical […]