The gap between textbook administrative law and actual practice exists in many areas, but perhaps nowhere more so than with respect to the so-called independent agencies. In theory, such agencies operate “independent” of the control and direction of the President. In practice, the White House has myriad mechanisms to oversee and even to control these […]
In A Report to the President-Elect of the United States 2016, the ABA’s Section of Administrative Law and Regulatory Practice calls attention to the opportunity to enhance to the efficiency of, and satisfaction with, the outcomes of agency adjudications by expanding the government’s commitment to using ADR techniques. Any discussion of ADR in the context […]
In addition to sending robust recommendations to President-elect Donald Trump’s transition team on administrative law issues for the new administration to consider, the ABA Section of Administrative Law and Regulatory Practice (“Section”) also recently sent several recommendations for potential research projects to the Administrative Conference of the United States (“ACUS”). These recommendations are very timely […]
Each year, diverse federal agencies conduct millions of hearings, making determinations that can have a profound impact on the parties participating in them. For instance, agency hearings can decide eligibility for disability or veterans’ benefits or can determine immigration status, with decisions impacting a party’s financial security or right to remain in the United States. […]
In this era of gridlock and difficult politics, a bipartisan group of Senators has done something worth celebrating. On Monday, with the introduction of the Daniel Webster Congressional Clerkship Act, S. 3499, the Senate has taken the first step not only toward busting the judicial clerkship monopoly on mentoring fresh young law graduates but also […]
This recent tweet from Professor Larry Tribe caught my eye: Call it what you like, but the # of voters turned away for not having required forms of ID exceeded margin of T’s victory in MI, Pa & Wis https://t.co/GwEpraOPgp — Laurence Tribe (@tribelaw) December 6, 2016 As soon as I read it, I said […]
A fraught area in recent times has been the unwillingness of the political executive to accept scientific findings generated in the civil service or in the academy in the face of controversy over regulatory matters on which they bear. Issues about “bending science” became particularly acute during the second Bush presidency, when political refusals to […]
In this post-election climate, one wonders how some of the most important legal issues of the current administration will be addressed in the years to come. One in particular that appears to be garnering less media attention than others pertains to the fate of the Dodd-Frank whistleblower program, specifically whether the momentum that has built […]
In any incoming Administration there are two unique appointments which could have a significant impact on the ultimate success or failure of an Administration, the Director of OMB and the leader of one of its component offices—the Office of Information and Regulatory Affairs, OIRA. The former helps develop and enforce Presidential policies using the annual […]
Republicans on Capitol Hill are reportedly planning to use the filibuster-proof budget reconciliation process to repeal the Affordable Care Act and overhaul the tax code. Against that background, Sam Wice says that “the most powerful person in America” in 2017 will be Senate Parliamentarian Elizabeth MacDonough, the nonpartisan official who will “determine” how much of […]
Copyright laws have never fully kept apace with technological change, and some questions have proven to be endlessly thorny. One of these problems is music sampling—the process by which musical artists mix samples of other artists’ content into their own productions. Given the widespread availability of digital editing tools like GarageBand and Logic Pro, this […]
The press and regulated entities have been asking many questions about the status of regulations issued under the Obama Administration, and whether and how they might be revised or repealed when the Trump Administration takes office. These questions arise in four major areas — Executive Orders, Midnight Rules, application of the Congressional Review Act, and […]
Who decides what laws passed by Congress mean in practice? As almost everyone knows, usually the courts fulfill this role, citing Marbury v. Madison – “It is emphatically the province and duty of the Judicial Department to say what the law is.” Readers of Notice and Comment are undoubtedly familiar with the large modern exception […]
In 2017, the most powerful person in America will not be President Trump, a swing vote on the Supreme Court, or a Congressional leader, but the non-partisan Senate Parliamentarian. This is because she will be the arbiter of the budget reconciliation process. Budget reconciliation is a method of passing legislation in the Senate that avoids […]
On February 8, 2016, the ABA adopted recommendations to revamp the APA’s informal rulemaking provision, 5 U.S.C. § 553. In its Report to the President-Elect, the ABA Section on Administrative and Regulatory Law has urged the Trump administration to endorse those revisions (pages 10-11). The provisions have been summarized previously in this blog here. Section […]