Proposals for regulatory reform featured prominently in the run-up to the 2016 election and will likely continue to receive very close attention in the new administration. As Emily Bremer highlighted in her introduction to this symposium, the American Bar Association’s Section of Administrative Law and Regulatory Practice prepared a report for both presidential candidates in […]
A Trump administration is unlikely to be supportive of three of the four recommendations relating to adjudication in the Report to the President-Elect by the ABA Section on Administrative Law and Regulatory Practice. Considering these recommendations (though not in the order they were presented in the ABA’s letter): 1) The Ad Law Section urged the […]
Among the ABA AdLaw Section’s recommendations in its bi-partisan Report to the President-Elect sent to both candidates before the election was this one concerning OIRA’s administration of Executive Order 12,866: Third, we urge you to ensure appropriate transparency in White House oversight of agency rulemaking through OIRA. From their beginning, the Executive orders creating a […]
Over the past two weeks, I have been asked more times than I can count how the Trump Administration can unravel the Obama Administration’s policies. My answer usually falls into one of three categories. First, policies that were instituted through guidance documents, such as executive memoranda and “Dear Colleague” letters, which I’ve called Government by Blog […]
While many things in Washington will change as a result of last Tuesday’s results, one thing that will not change is the importance of the D.C. Circuit. The nation’s leading administrative law court will continue to review agency actions in the Trump era, including actions based on agency interpretations of the statutes they administer. And […]
Proxy access is the ability of certain privileged shareholders to have their own slate of director nominees included in the company’s proxy materials whether or not the board of directors (Board) approves. Proxy materials include a proxy statement used to solicit shareholder votes and a voting card, which allows shareholders to vote without attending the […]
There are apparently swirling rumors that the Trump people, and Republican senators, may agree to enact the Separation of Powers Restoration Act of 2016. The Act, having passed the House, is now before the Senate Judiciary Committee. It instructs courts, inter alia, to “decide de novo all relevant questions of law, including the interpretation of […]
In PHH Corporation v. Consumer Financial Protection Bureau, the U.S. Court of Appeals for the D.C. Circuit, in an opinion by Judge Brett Kavanaugh, held that it was unconstitutional for the CFPB to be headed by a single Director who could not be removed by the president without cause. The consequences of the court’s decision […]
In the past 24 hours,* calls for Donald Trump to abandon his bid for the White House have swelled. While the odds of him doing so willingly still seem long, they are not negligible; who knows what they will be by early next week, after the second debate between Trump and Hillary Clinton. No matter the […]
On 28th June, the Department of Justice, Environmental Protection Agency, and Volkswagen proposed a judicial settlement to partially resolve the automaker’s Clean Air Act violations associated with the sale of almost 500,000 2.0 liter diesel engines that were equipped with “defeat devices.” While no one—not even Volkswagen—disputes the company’s misdeeds, the proposed partial consent […]
In thinking about the future of Auer deference, I begin with a critical supposition, that stare decisis will prevail and the Court will not overturn Auer, at least not based on separation of powers principles.* Retaining Auer, however, does not mean that its doctrine will remain static. Drawing especially but not exclusively from Christopher v. […]
I planned to post solely about how judicial review would operate without Auer deference. I recently ruminated in a forthcoming Missouri Law Review symposium paper about a future without Chevron, and I think post-Auer and post-Chevron futures offer interestingly different implications. But along the way I found myself thinking about the origins of Auer deference. […]
“[I]t is emphatically the province and duty of the Judicial Department to say what the law is.” These simple, straightforward words constitute Chief Justice John Marshall’s foundational definition in Marbury v. Madison of “the judicial Power” that the Constitution vests in the federal courts. Repeated in countless court decisions, law review articles, and civics textbooks, […]
The Separation of Powers Restoration Act, or more easily known as SOPRA, is not a complicated bill. If enacted, it would amend the Administrative Procedure Act to require courts to decide de novo all questions of law, whether constitutional, statutory, or regulatory. As the House Report makes abundantly clear, the intent is to overrule statutorily […]
To some, Auer deference stands apart from the rest of administrative law. On the one hand, Auer is distinguished from other forms of deference as uniquely constitutionally problematic, because it grants agencies deference for their own interpretations of their own regulations. This, according to Justice Scalia (accepting an argument raised by his former law clerk, […]