I’m still recovering from an exhausting but awesome Second Annual Administrative Law New Scholarship Roundtable, which my colleague Peter Shane and I hosted at Ohio State last week. I completely concur in Peter’s assessment of the roundtable (which he posted on Facebook last week): There are days that really remind you what academic life is like at […]
Emboldened by a string of aggressive Supreme Court decisions, businesses are increasingly turning to arbitration to shield themselves from civil litigation. Odds are, for example, that you’ve signed away your right to sue your cell phone carrier and cable company. Not that you noticed. You just clicked “yes” when asked if you’d read pages of […]
Editor’s Note: This post is a response to a recent post by Andy Grewal. Three lawsuits recently filed against President Donald Trump for allegedly unlawfully profiting from his financial empire do more than breathe new life into some obscure constitutional provisions. They serve as an important reminder that, under the Trump administration, the battle over […]
Under the Foreign Emoluments Clause, a person holding an office of profit or trust under the United States (a U.S. Officer) cannot, without Congressional consent, accept an “emolument . . . of any kind whatever” from a foreign government. The clause has received many legislative and executive interpretations over the years, but it has only […]
At the end of its term, a shorthanded and evidently evenly divided Supreme Court scheduled two immigration cases for re-argument next term when nine justices can hear the cases. Of the two, Sessions v. Dimaya stands out because the ninth and newest justice has very recently issued opinions that seem to bear directly on key […]
The D.C. Circuit does not normally issue opinions on Mondays, but it did this week — and the opinion is a noteworthy one. In Clean Air Council v. Pruitt, a per curiam panel (Judges Tatel and Wilkins) held that EPA lacks authority under the Clean Air Act to stay implementation of a regulation governing methane […]
At its 67th Plenary Session, held Friday, June 16th, the Assembly of the Administrative Conference adopted two new recommendations: Recommendation 2017-1, Adjudication Materials on Agency Websites and Recommendation 2017-2, Negotiated Rulemaking and Other Options for Public Engagement. As described on ACUS’s website: Recommendation 2017-1, Adjudication Materials on Agency Websites provides guidance regarding the online dissemination of administrative […]
Here at Notice & Comment, we square our shoulders and address the hard questions. No matter how controversial, no matter how divisive, we do not flinch from this duty. After all, we fill our bellies here with meat, not milk; we put away childish things. The time therefore has come for all right-thinking men and […]
Uniform Law Commission Acts and Projects Part 3 The Uniform Criminal Records Accuracy Act Many developments concerning criminal records have occurred over the past twenty years, including the creation of the National Criminal Background Check System in 1993, the establishment of criminal history repositories in all states, and the increasing use of criminal record checks […]
Together with Craig Garthwaite, a professor at Northwestern, I’ve got an op-ed in the New York Times on the consequences of the Republicans’ strategy to sabotage the Affordable Care Act. The health care industry consists of a dense network of public-private partnerships. Even programs widely viewed as “government” insurance, like Medicare and Medicaid, depend on […]
The U.S. Office of the Comptroller of the Currency (“OCC”) is the federal agency responsible for chartering national banks. See 12 U.S.C. § 1. This past March, after a year-long public dialogue with various sectors of the financial services industry regarding “Responsible Innovation in the Federal Banking System,” the OCC “determined that it is in […]
The central theme of the Republican campaign to repeal the Affordable Care Act has been freedom: freedom from Obamacare’s onerous regulations, freedom from overpriced insurance and most of all, freedom from the tyrannical individual mandate. The Senate has now released its long-awaited alternative to Obama-era health reform. Although the Better Care Reconciliation Act is embattled, there’s still a decent […]
As Aaron Nielson has reported on this blog, yesterday afternoon the D.C. Circuit issued a judgment in the SEC ALJ case. The judgment essentially reinstates the D.C. Circuit’s earlier panel decision finding that the ALJs are not Article II “officers” subject to the Constitution’s Appointments Clause requirements. The judgment thus also reinstates the D.C. Circuit’s […]
The Senate has now released the Better Care Reconciliation Act of 2017, its answer to the House’s American Health Care Act. The bill is wildly unpopular and has already come under fire from Senate Republicans, either for being too mean or not mean enough. But some version of the BCRA may still get 50 votes […]
Editor’s Note: Aneil Kovvali recently published a longer essay on this subject in the Yale Journal on Regulation Bulletin. You can access it here. Recent events have brought renewed attention to statutes designed to constrain the president. Troublingly, such statutes are often given limited constructions that weaken their force. Under the constitutional avoidance canon, statutes […]