As I noted last week, Senators Heitkamp and Portman, joined by Senators Hatch and Manchin, just introduced the Regulatory Accountability Act of 2017. Portman’s press release is here, and the full text of the bill is available here (you can also subscribe there for alerts on the legislation). My co-blogger Adam White had a thoughtful […]
My colleague Peter Shane and I are hosting the Second Annual Administrative Law New Scholarship Roundtable here at The Ohio State University on June 27-28, 2017. Last year’s inaugural roundtable at Michigan State was a terrific event. In February, we issued the call for papers. We now have our lineup of presenters and senior commentators. Once […]
For your weekend reading pleasure, I offer my latest article, The Agency Declaratory Judgment, which is now available on SSRN and is forthcoming in the Ohio State Law Journal. The article examines a useful provision of the APA with which you may be unfamiliar (really!). That provision is 5 U.S.C. 554(e). It states that an agency “with like effect as […]
Over at Jotwell, Chip Murphy reviews Bill Funk‘s short essay Final Agency Action after Hawkes, which is forthcoming in the New York University Journal of Law and Liberty. Here’s a summary of Funk’s essay from the SSRN abstract: On May 31, 2016, the Supreme Court decided United States Army Corps of Engineers v. Hawkes Co. (Hawkes), […]
So begins a post from Rachel Sachs, Darius Lakdawalla, and me at the Health Affairs Blog on the complicated interplay between value-based pricing and Medicaid’s best-price rule. What is the best-price rule? Does it really impede the adoption of value-based pricing? If so, what can be done about it? To keep federal spending in check, […]
Last September I suggested that those trying to predict the Clean Power Plan outcome by looking at the judges and “counting ‘R’s and ‘D’s” may be in for a surprise. The D.C. Circuit, after all, is serious about its craft and the idea that cases can be predicted this way is — in the words […]
As Chris noted last night, Senators Portman and Heitkamp introduced legislation to significantly reform and modernize the Administrative Procedure Act of 1946. There is much to be written about this version of the “Regulatory AccountabilityAct,” including its provision for replacing Auer deference with a Skidmore While regulatory reform tends to be construed as a Republican or conservative attack on administrative […]
The video of today’s press conference is here, and I’ve pasted below Senator Portman’s press release on the legislation. This is an important and thoughtful proposal to modernize the Administrative Procedure Act, and I will have much more to say about it in the coming weeks (once my Senate academic fellowship concludes). Here’s the press release: […]
Part 1 My name is Brian Lewis and I am Legislative Counsel with the Uniform Law Commission (ULC). The ULC is a nonprofit entity, formed in 1892, to create nonpartisan state legislation. Commissioners—who are all lawyers—are appointed for a term of service by the individual state governments, the District of Columbia, Puerto Rico, and the […]
When the Department of Homeland Security makes the choice to refrain from bringing charges against an undocumented person working at a restaurant or to freeze a removal order for a woman who serves as a primary caregiver to her U.S.-citizen children, the agency is favorably exercising “prosecutorial discretion,” which refers to the decision by DHS […]
There is substantial evidence that opioid addiction poses a significant threat to individual and public health in the United States. The CDC reports that the majority of drug overdose deaths (more than six out of ten) involve an opioid. Since 1999, the number of overdose deaths involving opioids quadrupled. From 2000 to 2015 more than […]
Samuel L. Bray’s forthcoming Harvard Law Review article, Multiple Chancellors: Reforming the National Injunction, argues that federal courts should eschew issuing nation-wide injunctions, no matter the importance of the question litigated or the value of nation-wide uniformity. He urges adherence to the principle that injunctions against the federal government should be “plaintiff-protective,” providing relief only to […]
Ivanka Trump, the daughter of President Trump, recently changed her position in the White House from informal advisor to unpaid government employee. See CNN (Mar. 29, 2017). Through this change, Ivanka, referred to here by her first name to avoid confusion with her father, became officially subject to various statutory ethics rules. Though the relevant […]
Political control of administrative agencies is a hot topic these days. And Brian D. Feinstein has a timely new article, Congress in the Administrative State, forthcoming in the Washington University Law Review that empirically evaluates how Congressional oversight hearings fit into the picture. Using an original dataset constructed from inspectors general semiannual reports, Government Accountability Office annual “top management challenges” lists, […]
Apologies — this will have to be a quick post. I’m traveling.* On Friday, April 21, the D.C. Circuit issued two opinions about the power of knowledge. The government lost both cases — one in which it sought information and the other in which someone else sought information from it. In CFPB v. Accrediting Council […]