With the presidential transition in process and one party about to control both chambers of Congress and the White House, it seems timely to highlight the terrific scholarship by Jon Michaels on administrative separation of powers. I recently reviewed several chapters from his forthcoming book on the subject, and they reminded me of a great article — entitled […]
Commentators have argued that President-Elect Trump’s various business interests, including in the D.C.-based Trump Hotel, may create constitutional problems under the Emoluments Clause. See, e.g., “Trump’s Hotel Lodges a Constitutional Problem,” Bloomberg View (Nov. 21, 2016). As relevant here, the Emoluments Clause prevents a person holding a federal office from accepting any “present” or “emolument” of […]
Among the ABA AdLaw Section’s recommendations in its bi-partisan Report to the President-Elect sent to both candidates before the election was this one concerning OIRA’s administration of Executive Order 12,866: Third, we urge you to ensure appropriate transparency in White House oversight of agency rulemaking through OIRA. From their beginning, the Executive orders creating a […]
Last Friday, the Consumer Financial Protection Bureau filed a petition for en banc review in PHH Corp. v. CFPB. The petition challenges Judge Kavanaugh’s opinion for two judges of a panel of the D.C. Circuit, which declared unconstitutional the statute limiting the President’s authority to remove the CFPB’s Director, Richard Cordray. In doing so, the […]
Over the past two weeks, I have been asked more times than I can count how the Trump Administration can unravel the Obama Administration’s policies. My answer usually falls into one of three categories. First, policies that were instituted through guidance documents, such as executive memoranda and “Dear Colleague” letters, which I’ve called Government by Blog […]
I have written about the Congressional Review Act before, so I will not repeat myself. Long story short, Congress will have the opportunity to review regulations promulgated by agencies late in the term of President Obama. This potentially matters a great deal. (Here is a link to Frequently Asked Questions about the CRA.) How the […]
I had the great fortune of beginning my career as a law clerk to Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit, who is emerging as a leading contender to inherit the seat vacated by Justice Scalia’s tragic death. FantasyJustice, Empirical SCOTUS, and Professor Noah Feldman all list him as […]
Over the next week or so, we will be hosting an online symposium on the 2016 Report to the President-Elect on Improving the Administrative Process, which was released by the ABA Section on Administrative Law and Regulatory Practice ahead of this year’s presidential election. The symposium will feature posts from a wide diversity of administrative […]
[This blog post comes in part from a policy brief co-authored with Simon Johnson, forthcoming] Like all the other academic idiots out there who failed to see this coming, I thought Trump’s chances for victory very low. Time was, I worried that Trump’s loss in November, the Fed’s raising of rates in December would lead […]
I am delighted to contribute to this symposium on the 2016 Report to the President-Elect that the American Bar Association’s Section of Administrative Law and Regulatory Practice issued shortly before the presidential election. As Emily Bremer noted in her symposium introduction earlier today, a number of administrative law scholars and experts will be doing short […]
In the past week, there has been a lot of discussion whether Jared Kushner, the son-in-law of Donald Trump, can serve as an advisor to Trump when he takes office. The concern is that hiring Kushner might violate the anti-nepotism laws. Under 5 U.S.C. § 3110(b), a “public official” cannot “appoint” or “employ” a […]
This week I want to try something new. I’ve been thinking about the future of administrative law and have some thoughts for Congress. So why not write a letter? Dear Congress: There are “swirling rumors” that the Senate may pass the Separation of Powers Restoration Act (“SOPRA”) (the House has already passed it). If this […]
While many things in Washington will change as a result of last Tuesday’s results, one thing that will not change is the importance of the D.C. Circuit. The nation’s leading administrative law court will continue to review agency actions in the Trump era, including actions based on agency interpretations of the statutes they administer. And […]
I’m getting a lot of head-scratching questions about the lawsuit, which is now pending at the D.C. Circuit. (For background, see here.) Let me see if I can help. As I see it, there are two distinct questions in play: Does President Trump want to stop making cost-sharing payments on Day One, leading to the […]
We’re pleased to announce the publication of “Navigating Conflicting Roles: The Ethical Obligations of an Organization’s Lawyers Post-Wells Fargo” in the Yale Journal on Regulation Online. The authors, John Rafael Perez, William Stone and Sarah Weiner, discuss the legal regime surrounding a lawyer’s representation of an organization during government-initiated enforcement actions. We’ve copied the introduction to their essay […]