What kind of law is immigration law? Is immigration law its own, exceptional creature, independent of all other areas of law? Or, is immigration law more porous, absorbing features of other closely related areas of law? Questions like these have challenged immigration law for some time. Even going back to the Nineteenth Century, the Supreme […]
It has generally been quite difficult for taxpayers to challenge alleged abuses of the IRS’s regulatory authority. Under section 7421(a) of the tax code, courts lack jurisdiction over suits “for the purpose of restraining the assessment or collection of any tax.” Commentators generally believe that this statute, commonly referred to as the Anti-Injunction Act, prohibits […]
This week was a quiet one at the D.C. Circuit, at least in terms of “admin law.” Aside from a couple of unanimous NLRB decisions, the court did not address regulatory issues at all. So if labor law is not your thing, feel free to take this week off—though come back next week. But if […]
Like many immigration law professors, I have long thought that President Obama’s deferred action programs are within the Executive’s statutory and constitutional authority. But as I re-read the Fifth Circuit opinion and the briefs in US v. Texas, I am becoming persuaded that the states challenging DAPA may have a valid point about one aspect […]
In his influential dissent in Garcia v. San Antonio Metropolitan Transit Authority , 469 U.S. 528 (1985). Justice Lewis Powell offered up a harsh take on federal administrative governance. “The administration and enforcement of federal laws and regulations,” he wrote, “necessarily are largely in the hands of staff and civil service employees. These employees may […]
On the seventh anniversary of the Lilly Ledbetter Fair Pay Act, President Obama and the U.S. Equal Employment Opportunity Commission (EEOC) announced new actions to advance equal pay for equal work. President Obama, EEOC Chair Jenny Yang, and EEOC Commissioner Charlotte Burrows announced on Friday, January 29 that the EEOC, White House, and U.S. Department […]
Here is a pretty good rule of thumb: If you want to understand an appellate judge, don’t spend too much time on majority opinions. To be sure, those opinions are almost always the most important ones—they’re the law, after all.* But the author of a majority opinion must write an opinion that reflects the views […]
My co-blogger Andy Grewal expresses skepticism that the Obama administration can cure the notice-and-comment problem in United States v. Texas by initiating notice-and-comment proceedings now and then promulgating its Deferred Action for Parents of Americans policy as a new final rule. In aprior post, I said it seems “pretty clear” that such an approach would […]
Both the NYT and Connor Raso’s post below warn darkly of rumored new regulatory reform legislation. But any new bill will be a breath of fresh air, compared to its archly-partisan predecessor, the Financial Regulatory Responsibility Act of 2011. Connor and I roundly denounced the FFRA in the SSRN draft of our Rational Boundaries article. […]
In a characteristically thoughtful post, my co-blogger Daniel Hemel considers a puzzle raised by the ongoing battle over the Obama administration’s decision to offer relief to some unlawful aliens. The Supreme Court, in United States v. Texas, will soon consider the legality of the administration’s actions under the “Deferred Action for Parents of Americans and […]
I have written more than my share about clerkship hiring and the collapse of the national hiring plan.* Long story short, about three years ago, the D.C. Circuit abandoned the plan because it had become an open secret that judges and applicants around the country were not abiding by it. Following the D.C. Circuit’s decision, […]
Over the weekend, as part of my weekly review of D.C. Circuit decisions, I included a footnote listing many articles written by D.C. Circuit judges. Without question, this list is incomplete, but it is a good place to start for scholars or advocates seeking to get a sense of the Court’s judges and their scholarly […]
OIRA, the Office of Information and Regulatory Affairs, located in the White House Office of Management and Budget, is the nation’s gatekeeper over federal regulatory activity. All executive branch agencies are prohibited from releasing economically significant regulations without first submitting their regulations to OIRA for review. In the performance of this duty OIRA is often […]
A bipartisan group in the Senate is working on a large package to reform the rulemaking process. Negotiations are ongoing but the New York Times reported last week that the package is likely to require agencies to engage in additional cost-benefit analysis that would be subject to judicial review. In joint work, I have argued […]
I’ve got a new essay coming out as part of a symposium on executive power at the University of Pennsylvania Law Review. Here’s the intro: Accusations of illegality have dogged the Obama administration’s efforts to implement the Affordable Care Act, the most ambitious piece of social legislation since the advent of Medicare and Medicaid. Some […]