Notice & Comment

Author: Adam White

Notice & Comment

Re-Imagining OIRA: A Call for Papers on the Future of Regulatory Budgets, Cost-Benefit Analysis, and White House Regulatory Oversight

A CALL FOR PAPERS As the White House’s Office of Information and Regulatory Affairs nears its fortieth birthday, we tend to spend a lot of time thinking about its history. But in a constitutional government that is nearly 230 years old, OIRA is actually very, very young—less a monument than an experiment. Instead of thinking […]

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At the CFPB, Cordray Creates One Last Cloud of Controversy

History doesn’t repeat, but it often rhymes. And so the circumstances of Richard Cordray’s departure from the Consumer Financial Protection Bureau seem fitting. Nearly six years ago, Cordray arrived at the CFPB as one of purported “recess” appointments that President Obama ventured despite the fact that the Senate was not actually in recess, a maneuver that […]

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Call for Papers: Permits, Licenses, and the Administrative State

The Center for the Study of the Administrative State, at George Mason University’s Antonin Scalia Law School, exists to encourage scholarship and debate regarding administrative law and the modern administrative state. It does this primarily by organizing roundtables and conferences encouraging and aiding new scholarship on significant issues. Next spring, the Center will host a workshop on “Permits, Licenses, and the Administrative […]

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Digging Deeper than Deference

In his latest column, Cass Sunstein welcomes the new Supreme Court term by laying down a marker for Justice Gorsuch: When people challenge Trump’s executive branch for having crossed legal lines, how will Gorsuch vote?  On the basis of what we know, my hunch is good news for the rule of law: No matter who […]

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Event Announcement: “Reforming the Administrative State: Looking Back, and Looking Forward” (Hoover Institution)

On Friday, June 23, Stanford University’s Hoover Institution will host a public conference in Washington, DC, for discussion of new scholarship on regulation and administrative law. It is the latest event convened by the Hoover Institution’s “Regulation and the Rule of Law Initiative,” which was founded by Michael McConnell, Charles Calomiris, and the late Allan Meltzer, to […]

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In Bipartisan Reform of the APA, Is There “Fertile Ground Here to Actually Get Something Done”?

As Chris noted last night, Senators Portman and Heitkamp introduced legislation to significantly reform and modernize the Administrative Procedure Act of 1946. There is much to be written about this version of the “Regulatory AccountabilityAct,” including its provision for replacing Auer deference with a Skidmore While regulatory reform tends to be construed as a Republican or conservative attack on administrative […]

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The Structure of Regulatory Revolutions

Today the most important book in administrative law is one that was written a half-century ago—but not by Kenneth Culp Davis, or Walter Gellhorn, or James Landis, or the other legends of administrative law. The author was a scientist, Thomas S. Kuhn, and the book is The Structure of Scientific Revolutions. Everyone interested in administrative […]

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The D.C. Circuit’s “Trump Card” for Executive Orders

As countless commentators have observed, President Trump’s first months in office have been marked by the issuance of significant executive orders and other executive actions aimed at undoing or reforming the work of his predecessor, and charting a new policy course forward. In that respect, Trump was not a break from recent experience, but a continuation […]

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Retrospective Review, for Tomorrow’s Sake

In the ABA Administrative Law Section’s Report to the President-Elect, one finds a rather familiar recommendation: that the agencies undertake “careful, in-depth retrospective review of existing rules.” I call this a “familiar” recommendation, because President-elect Trump’s predecessor called for such a retrospective review in his own Administration. In early 2011, after the mid-term elections, President Obama […]

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More on Justice Scalia’s Doubts About Chevron

After Justice Scalia’s passing (and even before it), word began to bubble up that he had been seriously rethinking Chevron, given his increasing doubts that the framework was tenable and productive. In the absence of a published opinion, it’s mainly been just the stuff of gossip—although gossip from sufficiently credible sources that I’ve felt confident mentioning it on this […]

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Why the Supreme Court Might Overrule Seminole Rock

In 1951, when Kenneth Culp Davis published his first comprehensive study of administrative law under the newly enacted APA, he explained that the deference courts give interpretative rules necessarily depends on a range of factors, from “the relative skills of administrators and judges in handling the particular subject matter” to “the extent of judicial confidence […]

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Analyzing oral arguments in United States v. Texas

Wednesday, April 20, 2016 | 4:00 PM – 5:00 PM Eastern | Teleconference Today the Supreme Court heard oral argument in United States v. Texas, one of the year’s most closely watched cases on constitutional and administrative law. The State of Texas and other plaintiffs challenge the Department of Homeland Security’s guidance on enforcement of […]

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The Fed Knows Prices, But the Founders Knew Real Values

Peter Conti-Brown’s terrific study of the Federal Reserve arrives amid a small boomlet—I won’t say “bubble”—of new books on our central bank: Roger Lowenstein’s America’s Bank: The Epic Struggle to Create the Federal Reserve; former Chairman Bernanke’s memoir, The Courage to Act; similar memoirs by former Chairman Greenspan and former Treasury Secretary Geithner; Philip Wallach’s […]

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Scalia and Chevron: Not Drawing Lines, But Resolving Tensions

Among the many reasons for mourning Justice Scalia’s untimely passing (on which I’ve written at length elsewhere) is the fact that his death abruptly cut short his late-career reconsiderations of the administrative state. As Aaron Nielson observes, recent years had seen Justice Scalia expressing serious doubts about judicial deference to agency interpretations of their own […]

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Defining Deference Down

CJW Note: Over at SCOTUSblog, there’s a great symposium on King v. Burwell. I thought I’d cross-post, with permission, one of the contributions, by Adam White, that relates to my post yesterday about the effect of King v. Burwell on administrative law. Here is Adam’s post: As many have by now noted, Chief Justice John Roberts asked only […]