Notice & Comment

Notice & Comment

Notice & Comment

Donald Trump’s most important Fed appointment (Hint: It’s not the Fed Chair)

Given the tumult of the opening weeks of the Trump Administration, the public is forgiven for not realizing that the Administration is woefully understaffed. But even in the flurry of personnel announcements from first the transition team and now the Administration, on the Federal Reserve—perhaps the most powerful of governmental agencies—we have had near radio silence. Of […]

Notice & Comment

Despite Republican Warnings, 24/7 Sessions Are Unlikely, by Sam Wice

Despite recent Republican warnings that the Senate will work 24/7 to overcome Democratic delay tactics, Republicans are unlikely to execute that strategy.  Floor time is the most valuable resource that Senate Republicans have and they have a number of pressing issues.  Senate Republicans only have limited time to use the Congressional Review Act and its […]

Notice & Comment

EPA/DOJ’s Volkswagen Settlement: A Strange Constitutional Creature, by William Yeatman

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 […]

Notice & Comment

Does Michigan v. EPA Require Cost-Benefit Analysis?, by Adrian Vermeule

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 […]

Notice & Comment

Is 3.49 more than 3?

Apparently Trump’s HHS doesn’t think so. From Jonathan Cohn at the Huffington Post: HHS has already submitted a proposal of new rules to OMB. [Under the proposal,] insurers would have more leeway to vary prices by age, so that premiums for the oldest customers could be 3.49 times as large as those for younger customers. […]

Notice & Comment

President Trump Signs Executive Order Introducing Significant Changes into the Federal Regulatory Process, by John Cooney

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 […]

Notice & Comment

Some Thoughts on Business Entities and the Foreign Emoluments Clause

Much of the commentary on President Trump and the Foreign Emoluments Clause has assumed that foreign government payments made to the Trump Organization should be treated as payments to the President himself. In this post, I want to informally explain how the presence of the business entities comprising the Trump Organization complicates the analysis. For […]

Notice & Comment

When norms break down.

I’ve got an article up at Vox on the possibility that Donald Trump might suspend enforcement of the ACA’s individual mandate. Would that be legal? The short answer is no. The longer answer is more complicated, but it’s also instructive. At key points, President Barack Obama delayed aspects of the ACA in an effort to […]