Notice & Comment

Notice & Comment

Notice & Comment

D.C. Circuit Review – Reviewed: King Solomon and the APA

The D.C. Circuit’s theme today was, of all things, the Bible. Start with Settling Devotional Claimants v. CRB. The case concerns whether the (now constitutional) Copyright Royalty Board correctly divvied up a pool of royalties among “religious ministries that own copyrights for devotional television programming.” Certain “Devotional Claimants” argued, among other things, that “the Royalty […]

Notice & Comment

ACUS is Hiring!

Interesting news for admin law aficionados. The Administrative Conference of the United States –ACUS—is hiring. If you really love administrative law, it is hard to imagine a better place to spend some time.

Notice & Comment

State Litigation Against Presidential Administration

Sometimes a gridlocked Congress means that an energized President and ambitious state lawmakers compete to solve the Nation’s social problems. But this competition may not make for innovative solutions. Instead, it may make more for more gridlock. Consider Texas v. United States. There a cadre of states have sued to stop President Obama’s deferred action […]

Notice & Comment

The Tax Court May Have Bailed Out Private Equity Firms

In my prior post, I discussed how the IRS has flouted the Administrative Procedure Act in issuing proposed regulations regarding tax-motivated “fee waiver” transactions undertaken by private equity firms. Although the IRS has long disregarded the democratic safeguards otherwise assured by the APA, it has generally faced little consequences for its actions. For example, tax […]

Notice & Comment

Does Procedural Review of Agency Guidance Make Sense? A Recent Example from the CFPB

The House Financial Services Committee overwhelmingly passed a bill declaring that the Consumer Financial Protection Bureau’s (“CFPB”) much-debated guidance document (“Bulletin”) on indirect auto lending to “have no force or effect.” At first glance, this bill would do nothing legally. Under administrative law doctrine, guidance documents like the Bulletin lack legal effect by definition. The […]

Notice & Comment

The IRS vs. Private Equity (Part 2)

In my previous post, I briefly discussed how the IRS has short-circuited the APA’s notice and comment rulemaking procedures to combat tax motivated transactions by private equity firms. I’d like to further flesh out that point here. Given the general readership of this blog, I’ll start by considering a hypothetical environmental statute and then turn […]

Notice & Comment

Rodriguez, Stiglitz & Weingast on Presidential Signing Statements and Separation of Powers (AdLaw Bridge Series)

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) […]

Notice & Comment

The IRS Beats Private Equity Firms At Their Own Game

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 […]