In my survey of federal agency rule drafters, I decided to ask a question about the role of presidential signing statements in agency statutory interpretation. In particular, I included a list of nine types of legislative history and asked: “For each of the following, please tell us if the type of legislative history is a (VR) […]
Earlier this week, the IRS issued regulations related to private equity “fee waiver” transactions, which are designed to convert high-taxed ordinary income into low-taxed capital gain. At first, I was pleasantly surprised by the IRS’s method of rulemaking here. Usually, when it issues regulations, the IRS announces that the APA does not apply, and it […]
In recent terms, several justices have expressed concern about the breadth of powers held by administrative agencies. Those views have been expressed in concurrences and dissents. Agencies accordingly have not seen substantial changes to their authority—though one notable exception is King v. Burwell, which resulted in the Court strengthening Chevron step zero by saying that agencies […]
As I’ve blogged about before, the role of cost-benefit analysis—and economic analysis more generally—in financial regulation has been a hot topic in recent years among scholars, policymakers, regulators, and the regulated. This debate has been sparked in part by the D.C. Circuit’s aggressive review of SEC rulemaking—in cases like Business Roundtable v. SEC and others—and […]
The agenda-setting phase of the regulatory process is critically important. In a time of constrained agency budgets and mounting policy challenges, an agency may send an important signal to market participants simply by placing an issue onto its agenda. Agency agenda-setting can also frame subsequent policy debates. Agenda-setting is a difficult topic to study partly […]
I previously blogged here about Nicholas Parrillo‘s terrific book Against the Profit Motive: The Salary Revolution in American Government, 1780-1940 (2013), noting that the book “is a fascinating read for anyone interested in the history (and future) of administrative law and regulation.” Recently in the pages of the Harvard Law Review, Jon Michaels reviews Nick’s […]
In 1992, the IRS issued proposed regulations designed to combat a tax strategy used by the May Department Stores Company. Although the regulations were not immediately effective, the IRS announced that it when it finalized them, the regulations would apply retroactively to 1989. Consequently, some taxpayers took the proposed regulations into account in structuring their […]
Here is the June 2015 edition of the most-downloaded recent papers (those announced in the last 60 days) from SSRN’s U.S. Administrative Law eJournal, which is edited by William Funk. There are a number of terrific new papers, including great reads from Josh Chafetz, Gillian Metzger, Liz Porter, Cass Sunstein, and Adrian Vermeule. Here’s the top ten: 1. […]
The ABA Admin Law Section is hosting a teleforum on Michigan v. EPA this Thursday, July 16 at 11:00 AM. Details on the program are available here. The program will feature Richard Revesz (NYU School of Law), Andrew Grossman (BakerHostetler), and yours truly. Adam White (Boyden Gray & Associates, Manhattan Institute) will moderate the discussion. […]
Daniel Deacon’s recent post and his essay in the Administrative Law Review raise several interesting – and potentially concerning, which is not to say wrong – points. Importantly, even though the vagaries of publication mean that his essay focuses on the FCC’s use of Section 706 to implement its Open Internet rules, whereas the FCC […]
As Chris Walker noted recently on Twitter, the latest issue of the Administrative Law Review was kind to Notice and Comment bloggers. My own contribution has to do with a new basis for the FCC’s jurisdiction over Internet Protocol-based networks and services. And that basis is not Title II of the Communications Act, which has […]
As has been discussed on this blog and elsewhere, Chief Justice Roberts’ majority opinion in King v. Burwell rejected the application of Chevron deference for the IRS’s construction of Section 36B. The meaning of the phrase “established by the State” was not something for the IRS to determine, because “had Congress wished to assign that […]
It was easy to overlook in the hubbub over the end-of-term cases, but the Supreme Court yesterday morning agreed to hear Gobeille v. Liberty Mutual, a case with significant implications for the states’ authority over the health-care sector. At issue in the case is whether Vermont can force health insurers—including employers that self-insure—to tell state […]
In Michigan v. EPA, the Supreme Court invalidated an EPA rule regulating power plant emissions of mercury and other pollutants. This post discusses the decision’s potential impact on cost-benefit jurisprudence generally. All nine justices endorsed the proposition that agencies have a general obligation under the Administrative Procedure Act to consider costs when deciding to regulate. […]
I’d like to chip in with some quick thoughts on recent, skeptical rumblings in the Court about deference to administrative agencies. What interests me most here is not the arguments separate Justices are making against deference—they are not new to administrative law thinking, though their return to judicial discussion is more novel. Rather, I’m wondering […]