After Justice Scalia’s passing (and even before it), word began to bubble up that he had been seriously rethinking Chevron, given his increasing doubts that the framework was tenable and productive. In the absence of a published opinion, it’s mainly been just the stuff of gossip—although gossip from sufficiently credible sources that I’ve felt confident mentioning it on this […]
Donald Trump is the President-Elect with both houses of Congress at his disposal. He promises judicial nominations to help bring the courts under his sway. He invokes authoritarian rulers as paragons of leadership. Trump’s instinctive reaction to dissent is not to listen, but to destroy. And what hopes lie in the moderating norms of the […]
Proxy access is the ability of certain privileged shareholders to have their own slate of director nominees included in the company’s proxy materials whether or not the board of directors (Board) approves. Proxy materials include a proxy statement used to solicit shareholder votes and a voting card, which allows shareholders to vote without attending the […]
The Data Quality Act (DQA), aka as the Information Quality Act, allows members of the public to file citizen petitions to obtain corrections of inaccurate information disseminated by federal agencies. Consequently the DQA provides a means for the public to obtain corrections in press releases, reports and regulations issued by federal agencies. In essence the […]
The 2016 Federalist Society National Lawyers Convention takes place later this week in Washington, DC. The conference theme this year centers on the jurisprudence and legacy of Justice Scalia. In light of the presidential election surprise last week, the theme will no doubt be more prospective — and not just retrospective — than originally planned. […]
It got lost in the election news last week, but a judge on the Court of Federal Claims has dismissed one of the risk corridor lawsuits. (Background on these lawsuits, which seek several billions of dollars from the U.S. government, is here.) The opinion in Land of Lincoln v. United States is long and complicated, […]
As the Trump administration prepares to take over, it has revealed some of the policy changes it plans to implement. These include reducing environmental restrictions, amping up enforcement of immigration rules, and deregulating businesses. Trump’s administration will no doubt want to implement some of these changes faster than would be possible through the notice-and-comment- process. […]
Last week, Adrian Vermeule posted thoughts here on the Separation of Powers Restoration Act (“SOPRA”). In the words of Bill Funk, SOPRA “would amend the Administrative Procedure Act to require courts to decide de novo all questions of law, whether constitutional, statutory, or regulatory. As the House Report makes abundantly clear, the intent is to […]
The IRS was actively involved in implementing various policy objectives of the Obama Administration and issued various controversial regulations, including those dealing with the Affordable Care Act. With Donald Trump soon to step into the Oval Office, one may wonder about the extent to which the Trump Administration can reverse regulations issued by the Treasury/IRS […]
This week has been, shall we say, an eventful one. With so many stories to choose from, I’ve wondered what I should write about. For instance, what is going to happen in PHH Corp v. CFPB? That decision has become much more important. Now that “for cause” removal for the CFPB Director is gone, presumably […]
With the caveat that this is a bad week for predictions, I’d like to offer my thoughts on what might happen next to the Affordable Care Act. I suspect there’s a pretty relentless political logic that’s about to take hold. For starters, I doubt that Republicans will be able to coalesce around an alternative to Obamacare. […]
Earlier this year,* I moderated a teleforum for the ABA Section of Administrative Law and Regulatory Practice’s Rulemaking Committee on the Congressional Review Act. You can access the recording for free here. The panel discusses the CRA from a number of different perspectives. After the events of this week, the CRA has become much more […]
When it comes to the ACA, the first major question facing an incoming President Trump will be whether to terminate cost-sharing payments to health plans. Already, prominent voices are calling on him to immediately cut off payments. What effect would that have? And what are his options? Under the ACA, health plans are required to […]
My guess is that the Trump Transition Team is feeling pretty overwhelmed right now, so I’ll keep this initial post short and sweet. But I did want to share a few thoughts on the regulatory state that may be of value to the Transition Team as they identify key political appointees and first priorities for […]
There are apparently swirling rumors that the Trump people, and Republican senators, may agree to enact the Separation of Powers Restoration Act of 2016. The Act, having passed the House, is now before the Senate Judiciary Committee. It instructs courts, inter alia, to “decide de novo all relevant questions of law, including the interpretation of […]