A fraught area in recent times has been the unwillingness of the political executive to accept scientific findings generated in the civil service or in the academy in the face of controversy over regulatory matters on which they bear. Issues about “bending science” became particularly acute during the second Bush presidency, when political refusals to […]
From the ACUS Administrative Fix Blog: We are pleased to announce this December 9th DC Bar program based on a recent ACUS project. http://www.dcbar.org/marketplace/event-details.cfm?productcd=011708ADMC This program will highlight important new research on how agencies assist Congress in drafting legislation. This work provides insights for congressional staff in better utilizing agencies. Professor Chris Walker, from The […]
The big risk of repeal-and-delay (well, one big risk) is that the individual insurance market will unravel before the Affordable Care Act’s repeal takes effect. As one expert has tartly noted, “Republicans are being awfully naïve. They seem to be ignoring the risks in the transition period, particularly because they need insurance companies to provide insurance […]
In this post-election climate, one wonders how some of the most important legal issues of the current administration will be addressed in the years to come. One in particular that appears to be garnering less media attention than others pertains to the fate of the Dodd-Frank whistleblower program, specifically whether the momentum that has built […]
As I blogged about in November, this Thursday and Friday in Washington, DC, is the annual ABA Administrative Law Conference. This is an absolute must-attend conference for adlaw nerds, scholars, and practitioners. You can register and get the full schedule here. On Thursday afternoon from 3:00PM-4:30PM, I’ll be moderating a terrific panel on administrative law exceptionalism. […]
President-elect Trump has announced that he will nominate General James Mattis to serve as Secretary of Defense. This “legendary” general is talented and well-regarded, but his nomination may prompt a problem. Mattis, you see, “retired from the Marine Corps in 2013,” but federal statutory law states that “[a] person may not be appointed as Secretary […]
In any incoming Administration there are two unique appointments which could have a significant impact on the ultimate success or failure of an Administration, the Director of OMB and the leader of one of its component offices—the Office of Information and Regulatory Affairs, OIRA. The former helps develop and enforce Presidential policies using the annual […]
We find the PRC’s interpretation that “service standards” should be measured in conjunction with separately defined performance goals reasonable and entitled to deference. The PAEA requires the Postal Service to establish a set of service standards, not service guarantees. See 39 U.S.C. § 3691(a). These standards must be designed to ‘reasonably assure Postal Service customers […]
Republicans on Capitol Hill are reportedly planning to use the filibuster-proof budget reconciliation process to repeal the Affordable Care Act and overhaul the tax code. Against that background, Sam Wice says that “the most powerful person in America” in 2017 will be Senate Parliamentarian Elizabeth MacDonough, the nonpartisan official who will “determine” how much of […]
The Yale Journal on Regulation is pleased to announce the final publication of Volume 33, Issue 2. The articles published in this Issue are all available on our website and can be accessed here. We’d also like to announce our partnership with the Lillian Goldman Law Library at Yale Law School to make all previous issues […]
Copyright laws have never fully kept apace with technological change, and some questions have proven to be endlessly thorny. One of these problems is music sampling—the process by which musical artists mix samples of other artists’ content into their own productions. Given the widespread availability of digital editing tools like GarageBand and Logic Pro, this […]
The press and regulated entities have been asking many questions about the status of regulations issued under the Obama Administration, and whether and how they might be revised or repealed when the Trump Administration takes office. These questions arise in four major areas — Executive Orders, Midnight Rules, application of the Congressional Review Act, and […]
Who decides what laws passed by Congress mean in practice? As almost everyone knows, usually the courts fulfill this role, citing Marbury v. Madison – “It is emphatically the province and duty of the Judicial Department to say what the law is.” Readers of Notice and Comment are undoubtedly familiar with the large modern exception […]
In 2017, the most powerful person in America will not be President Trump, a swing vote on the Supreme Court, or a Congressional leader, but the non-partisan Senate Parliamentarian. This is because she will be the arbiter of the budget reconciliation process. Budget reconciliation is a method of passing legislation in the Senate that avoids […]
On February 8, 2016, the ABA adopted recommendations to revamp the APA’s informal rulemaking provision, 5 U.S.C. § 553. In its Report to the President-Elect, the ABA Section on Administrative and Regulatory Law has urged the Trump administration to endorse those revisions (pages 10-11). The provisions have been summarized previously in this blog here. Section […]