Notice & Comment

Author: Adam White

Notice & Comment

The Fed’s Appointment with (Politicized) Destiny

Financial regulators are reshaping themselves into tools of climate policy, and this transformation presents myriad problems—some legal, some practical. And the controversy surrounding recent nomination to the Federal Reserve remind us of yet another problem—one that seems to be catching some observers by surprise, but which is all too familiar to those of us who […]

Notice & Comment

Abortion, the Supreme Court, and Passive-Aggressive Administration

The Supreme Court’s latest abortion cases, being argued this morning, aren’t actually about abortion. They’re about administration, and the role of courts in it. At least, the point I try to make this morning in a short essay elsewhere, which may be of interest to Notice & Comment‘s readers. It’s natural for Court-watchers to group […]

Notice & Comment

By Quasi-Legislative Order: Busy Agencies, Feeble Execution

*This is the seventh post in a series on Andrew Rudalevige’s new book, By Executive Order: Bureaucratic Management and the Limits of Presidential Power. For other posts in the series, click here. Any book on the constitutional executive will contain more than a little Alexander Hamilton. It’s ironic: Hamilton’s famous argument for “energy in the executive,” so […]

Notice & Comment

The Temptation of “Good-Faith Faithless Execution”

In an era when Congress seems nearly incapable of producing significant legislation, because the Senate’s filibuster effectively requires significant bipartisan support, it is only natural to feel the temptation to simply short-cut the entire institutional ordeal.  And it feels all the more urgent on an issue like immigration, where the stakes are especially high and […]

Notice & Comment

George Shultz’s statesmanship began with good government at home

When George Shultz passed away last week, America lost one of the 20th Century’s greatest statesmen. His death, months after his 100th birthday, spurred an outpouring of obituaries and remembrances, a fitting tribute to an extraordinary man. He had an unparalleled career of public service, in four cabinet positions — Director of the Office of […]

Notice & Comment

Chief Justice Taft, President Taft, and the Myers case

How much power does the Constitution give the President to fire the heads of departments, and what does this imply about lower-level civil servants who staff those departments? The former question has been debated since the First Congress, of course; and the latter question since the Pendleton Act. And both questions are once again in the […]

Notice & Comment

When Congress Invites Courts to Sit in Judgment of Congress

This year the Supreme Court prohibited the Trump Administration from undoing the Obama Administration’s “DACA” policy without first providing a more thorough justification; a year earlier it prohibited the Trump Administration from adding the citizenship question without first providing a more candid justification. The common line connecting the cases is clear, and it suggests a trend of slight reinvigoration of judicial […]

Notice & Comment

Call for Papers: “Judicial Review in an Increasingly Undeferential Age”

This morning the Supreme Court issued its decision in Department of Homeland Security v. Regents of the University of California—better known as the DACA Repeal Case. In striking down the Trump Administration’s effort to rescind the Obama Administration’s immigration enforcement policy, Chief Justice Roberts’s opinion for the Court highlighted the Court’s role in scrutinizing agency […]

Notice & Comment

The New Executive Order on Social Media Is Primarily About Consumer Protection Laws, Not “Publisher” Status

By the time he actually signed it, President Trump’s “Executive Order on Preventing Online Censorship” was no surprise. His complaints about social media platforms, and his calls for Congress to rescind Internet platform companies’ immunity under Section 230 of the Communications Decency Act, are long-familiar refrains. More recently, he practically shouted his intentions to take […]

Notice & Comment

Covid-19, Regulatory Recalibration, and Learning for the Long Run

Yesterday the White House issued a new executive order titled “Executive Order on Regulatory Relief to Support Economic Recovery.” It is intended, most immediately and obviously, to amplify the economic recovery so sorely needed amid the Covid-19 crisis. But President Trump’s order could have significant long-term effects, because it contains what we can think of […]

Notice & Comment

Call for Papers: Lessons Learned from Covid-19

A few weeks ago, the C. Boyden Gray Center for the Study of the Administrative State announced its 2020–2021 agenda for research roundtables. Today we are calling for papers for the first two Autumn 2020 roundtables, both related to the Covid-19 outbreak: [T]he Gray Center’s first two research roundtables will focus on lessons learned from […]

Notice & Comment

Congress Should Fix the Nationwide Injunction Problem with a Lottery

The Administrative Conference’s forum on nationwide injunctions certainly is well-timed. Just days ago, the Court published Justice Gorsuch’s concurring opinion in Department of Homeland Security v. New York, questioning the constitutionality of “nationwide injunctions” against the federal government. “Whether framed as injunctions of ‘nationwide,’ universal,’ or ‘cosmic’ scope,” Gorsuch wrote, “these orders share the same […]

Notice & Comment

Can the Supreme Court Adjudicate the CFPB’s Independence Without Determining How Independent the CFPB Actually Is?

In Seila Law v. CFPB, the Supreme Court will consider whether the CFPB Director’s for-cause removal protection—removal only for “inefficiency, neglect of duty, or malfeasance in office”—unconstitutionally detracts from the President’s executive power. But to decide that issue, doesn’t the Court need to first decide what “inefficiency,” “neglect of duty,” or “malfeasance in office” actually […]