Notice & Comment

Author: Bernard Bell

Notice & Comment

Spadaro v. Customs & Border Patrol: Visa Revocations, Transparency, and Textualism

Summary: This post highlights the Second Circuit’s recent decision allowing the State Department to withhold records regarding visa revocations from Freedom of Information Act (“FOIA”) requesters.  The post then critiques the Court’s problematic use of textualist methodology, noting that it presumes imprecise Congressional drafting, In Spadaro v. United States Customs and Border Protection,[1] the Second […]

Notice & Comment

The Court Where It Happened: U.S. v. Bolton

After a difficult 17-month tenure as President Trump’s third National Security Advisor, John Bolton was ready to talk about his experiences, including presidential conduct he found “deeply disturbing.” But he was not eager to talk with any of the nation’s elected representatives who were participating in impeachment proceedings — proceedings to determine whether the President’s […]

Notice & Comment

Race and Administrative Law, by Bernard Bell

Most of administrative law scholarship, and certainly the most widely cited and acclaimed scholarly contributions to the field, appear to be color-blind.[1]  Most leading administrative law decisions seem to be so as well. Should we as scholars and thinkers in the field stand chastened by such a state of affairs?  What role should race assume in administrative […]

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The First Casualties of Emergency Relief Programs

This post discusses the media plaintiffs’ prospect in WP Co. LLC v. U.S. Small Business Administration, seeking information about government disbursement of funds under two programs being used to address the severe economic dislocations attendant the coronavirus pandemic. “In war, truth is the first casualty.” Aeschylus “Not Now!:” FOIA Requests and the Small Business Administration’s […]

Notice & Comment

Compact Agencies and Transparency (Part II)

This post is the second in a two-part series exploring recent proposals or innovations to extend public access obligations to bi-state or multi-state agencies created to administer interstate compacts, i.e., compact agencies.  Compact agencies have traditionally occupied a lacunae in which neither federal nor state freedom of information (“FOI”) laws applied.  In Part I, I […]

Notice & Comment

Compact Agencies and Transparency (Part I)

States use interstate compacts to address various multi-state regional problems.[1]  Sometimes compact signatories create a “compact agency” to administer the compact.  Must such agencies provide access to their records? Every state public records law grants the public access to the records of state agencies. The federal Freedom of Information Acts (“FOIA”) imposes similar public access […]

Notice & Comment

The Deliberative Process Privilege and Nonacquiescence: Hall & Associates v. EPA

Agencies can withhold documents pursuant to Freedom of Information Act’s (FOIA) deliberative process privilege only if the documents are both predecisional and deliberative.[1]  If an agency refuses to apply a court of appeals decision outside of that Circuit, that is, if it engages in “intercircuit nonacquiescence,”[2] when is “the decision” to do so made?  In […]

Notice & Comment

Asking An Agency to Make A Silk Purse Out of A Sow’s Ear?: Union Pacific v. Pipeline & Hazardous Materials Safety Administration (Part I)

Cooperative federalism often involves information sharing between different levels of government. What are the implications of such information sharing for application of federal and state freedom of information/public records statutes?  When private entities are required to share information with state governments under a federal mandate, is release of that information governed by the federal Freedom […]

Notice & Comment

A Preemptive Grin Without the Statutory Cat?: Congressional Review Act Disapproval Resolutions & State Legislative Initiatives (Part II)

Pursuant to the Congressional Review Act (“the CRA”), Congress can adopt, with the President’s concurrence, a resolution disapproving an agency rule within 60 days of notification that the rule has been adopted.  Section 801(b)(2) of the CRA provides that disapproval resolutions preclude the agency from adopting “a new rule that is substantially the same as” […]

Notice & Comment

A Preemptive Grin Without the Statutory Cat?: Congressional Review Act Disapproval Resolutions & State Legislative Initiatives

The Congressional Review Act (“the CRA”)[1] establishes an expedited legislative process for preventing final agency rules from going into effect.  It provides a sixty-day period for Congress to adopt and the President to sign a resolution disapproving an agency rule.  5 U.S.C. §802(a).  If a disapproval resolution is adopted, the agency can neither “reissue [the […]

Notice & Comment

Greater Philadelphia Chamber of Commerce v. City of Philadelphia: Are Employer Information Requests Commercial Speech?

Several states and municipalities, including the City of Philadelphia, have adopted laws prohibiting employers from asking prospective employees for their wage and salary history.[1]  Such statutes and ordinances are designed to attack persistent wage disparities between White and non-White as well as male and female employees.  The Greater Philadelphia Chamber of Commerce challenged the Philadelphia’s […]

Notice & Comment

Third Circuit Holds Claimants May Raise Lucia Challenges to SSA ALJs for First Time in District Court

Today the Third Circuit issued an opinion regarding application of exhaustion requirements to Lucia v. SEC, 138 S. Ct. 2044 (2018), challenges to Social Security Administration ALJs – Cirko v. Commissioner, 2020 WL 370832. Lucia decided that the SEC’s ALJs were officers of the United States, and thus that their appointments were unconstitutional because the […]