Notice & Comment

Author: Connor N. Raso

Notice & Comment

New ABA Administrative Law Section Resolution on Improving the APA

The ABA’s Section of Administrative Law and Regulatory Practice recently approved a report and resolution on improving the APA’s rulemaking provisions. The Section believes that while the basic chassis of the APA has been shown to be fundamentally sound, a variety of updates deserve serious consideration. The resolution proposes reforms to modernize the Act that […]

Notice & Comment

What Regulatory Reform Legislation Might Pass This Congress?

House and Senate committees have been doing a fair bit of work behind the scenes on regulatory reform legislation lately. This post focuses on the legislation that appears to have the greatest odds of being enacted into law and outlines a possible path forward. On October 7, 2015, the Senate Homeland Security & Governmental Affairs […]

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

Agency-to-Agency Agenda-Setting

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 […]

Notice & Comment

Upcoming ABA Teleforum on Michigan v. EPA

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. […]

Notice & Comment

Michigan v. EPA’s Impact on Cost-Benefit Requirements

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. […]

Notice & Comment

King v. Burwell: Why Is the Scope of Chevron So Unpredictable?

The majority in King v. Burwell surprised many observers by declining to grant Chevron deference to the IRS interpretation of the Affordable Care Act at issue. Instead, the Chief Justice’s opinion held thatChevron does not apply to questions that are of “deep economic and political significance.” This post does not analyze how this decision relates […]

Notice & Comment

Administrative Procedure as a Source of Agency Advantage

Procedural requirements like the APA’s notice-and-comment process are often viewed as burdens on agencies to be avoided when possible. My new paper in the Administrative Law Review provides evidence for that view. But this view is not always correct (if it were, many questions in this area would be less interesting!). In some cases, agencies […]

Notice & Comment

Chevron as a Canon, Not A Precedent

Last week, the DC Circuit issued a potentially important decision in Validus Reinsurance, Ltd. v. United States addressing the potential interplay of the presumption against extraterritoriality—a canon of statutory construction—and Chevron deference. Andy Grewal has a great post that summarizes the case and speculates that “Chevron deference might just be an interpretive canon which need […]

Notice & Comment

Thoughts on GAO’s New Report on Guidance Documents

Agency use of guidance documents (defined here as agency rules issued as either interpretive rules or policy statements) has been hot topic in administrative law lately. The Supreme Court recently rejected a D.C. Circuit doctrine that was intended at least in part to deter agency abuse of guidance. Several justices have expressed an interest in reducing […]

Notice & Comment

Policy, Politics, and Administrative Law: The Obama Administration’s Deferred Action Program

The Obama administration’s deferred action program for eligible undocumented immigrants has thrust an obscure issue into the spotlight: when must federal agencies allow the public to comment on their policy initiatives? In February, a federal judge issued a temporary injunction against the program largely on the grounds that the Department of Homeland Security’s (DHS) decision […]

Notice & Comment

Will the Government Get Chevron Deference in King v. Burwell?

The Government is likely to prevail in King v. Burwell if its interpretation of the Affordable Care Act receives Chevron deference. This raises an important question: what influences when Supreme Court justices grant Chevron deference to agencies? Prof. Bill Eskridge and I examined this question in a paper that examined all Supreme Court cases from […]

Notice & Comment

Agency Interpretation of Admin Law Requirements

When issuing rules, agencies usually avoid the Reg Flex Act (RFA), which requires consideration of regulatory impacts on small businesses and other small entities. My forthcoming article in theAdministrative Law Review explains why and how agencies have avoided providing Reg Flex analyses for over 92 percent of rules. The House recently passed a bill that […]