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 […]
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. […]
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 […]
Next Friday I will moderate a teleconference on behalf of the ABA Section of Administrative Law & Regulator Practice. The panel will discuss rulemaking in the new administration. It’s free, but you have to RSVP. Here is the relevant information: Friday, February 10, 2017 1:15 pm – 2:15 pm Eastern Time With a new President […]
I have a confession: I don’t really care about this year’s Super Bowl. Atlanta is a lovely place — I’ve been there once — but I have literally no opinion about the Atlanta Falcons. And although I lived in Massachusetts for a time, I prefer not to think about it.* But one thing about the […]
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 […]
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 […]
It’s a new year for administrative law scholarship, one full of promise with so many fascinating adlaw issues arising with a change in presidential administration. We have new executive orders and other executive actions, chatter about the removal of the CFPB director, agencies with new leadership with new agendas, unified government with perhaps unusual alliances for […]
Yale Law School Professor Nick Parrillo must have a crystal ball. His just-posted article, The Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power, seems to have anticipated today’s headlines. The controversies over Trump’s ill-considered Immigration Executive Order, Trump’s summary firing of Acting Attorney General Sally Yates for refusing to defend the […]
In the past few days a number of people have asked me about Judge Thomas Hardiman and administrative law. Each time my answer was, “Well, I actually don’t know.” There has been some good writing on Judge Gorsuch and administrative law, in particular with respect to his recently voiced skepticism toward judicial deference to agency […]
On January 30th President Trump signed an executive order mandating that most executive departments and agencies go on a regulatory diet. The EO requires agencies that create a new regulation to identify two regulations to be repealed. In FY 2017 covered agencies are required to keep the net cost of regulation to no greater than […]
The real life implications of President Trump’s immigration executive orders exploded over the weekend. On Friday, President Trump proclaimed the unwillingness of the United States to accept refugees by suspending the whole overseas refugee program for 120 days and indefinitely suspending that program for Syrian refugees. He also cut off all immigration from seven countries […]
After a six-year hiatus, legally valid recess appointments will likely return in 2017. The Constitution gives “[t]he President [the] Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” In effect, recess appointments give the President the […]
Standing is a big deal. Most agree, for instance, that the law professors suing President Trump about the Emoluments Clause “pretty clearly lack Article III standing.” Likewise, the States, members of Congress, and interest groups seeking to intervene in PHH Corp. v. CFPB no doubt are going to face a fierce challenge to their standing. […]
As regular readers of this blog know, I have written several posts on the Foreign Emoluments Clause over the past couple months. During that same time, I have been working on an extensive scholarly article on the clause, and I recently posted a draft on SSRN. (Download here: The Foreign Emoluments Clause and the Chief […]