Notice & Comment

Author: Adam White

Notice & Comment

The CFPB’s Blank Check—or, Delegating Congress’s Power of the Purse

In one of the Consumer Financial Protection Bureau’s first strategic plans, the then-new agency highlighted Congress’s decision to vest it with a completely independent source of revenue: “providing the CFPB with funding outside of the congressional appropriations process,” Congress had  “ensure[d] full independence” for the agency.  The agency’s declaration of independence from future congressional appropriations […]

Notice & Comment

Laurence Silberman: The Public Service that Helped to Form a Judge

The news of Judge Laurence Silberman’s passing on October 2 spurred a wave of remembrances from colleagues, admirers, former proteges, Supreme Court justices, and many more. Some of my AEI colleagues contributed writings of their own: Robert Doar, Yuval Levin, and John Yoo.  His contributions to the law—particularly in respecting and reinforcing the Constitution’s separation of powers—were immense, as many of his […]

Notice & Comment

Regulatory Budgets: Looking Back, Looking Forward

What have we learned so far about regulatory budgets, and what might the next iteration of Executive Order 13771 look like? Although E.O. 13771 is not currently on the books, future presidential administrations may decide to formulate their own versions of regulatory budgeting under OIRA’s management and oversight. So it’s good to learn from the […]

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 […]