Notice & Comment

Notice & Comment

Notice & Comment

D.C. Circuit Review – Reviewed: A Field Study

My posts are designed to help you keep track of the D.C. Circuit — with particular focus on administrative law — in five minutes a week. To that end, for nearly five years I’ve provided a summary of the week’s cases.* But this week I’ve really gone above and beyond the call of duty. I’ve […]

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

D.C. Circuit Review – Reviewed: Jerry Sloan

This week the Supreme Court unanimously reversed the D.C. Circuit; that doesn’t happen very often. And yesterday there was a (puzzling) brouhaha about a procedural order. Even so, on the whole, it has been a quiet week for the D.C. Circuit.* So I’ll claim a moment of personal privilege. This morning Jerry Sloan passed away. […]

Notice & Comment

Pending Cert Petition in Altera: Tax Law in an Administrative Law Wrapper, by Susan C. Morse and Stephen E. Shay

Each day of the COVID crisis we see unprecedented administrative action to respond to the pandemic. At the same time, litigants continue to ask courts to consider whether administrative agencies have exceeded their authority, sometimes relying on claims of deficient process. One such case is Altera v. Commissioner, in which the taxpayer filed a cert petition that asks […]

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

COVID-19 & CRA Jeopardy

We’ve covered the issue of Congressional Review Act (CRA) disapprovals quite closely here on the blog, so readers might recall that Congress can use the CRA to disapprove federal agency rules using fast-track procedures during a special window of time following the rule’s issuance. What we’ve surely never talked about on the blog is how […]

Notice & Comment

The First Casualties of Emergency Relief Programs

This post discusses the media plaintiffs’ prospect in WP Co. LLC v. U.S. Small Business Administration, seeking information about government disbursement of funds under two programs being used to address the severe economic dislocations attendant the coronavirus pandemic. “In war, truth is the first casualty.” Aeschylus “Not Now!:” FOIA Requests and the Small Business Administration’s […]

Notice & Comment

Essay: The Illusory Precedent of McGrain v. Daugherty, by Daniel Epstein

On May 12, 2020, the Supreme Court heard argument in the consolidated cases of Trump v. Mazars LLP and Trump v. Deutsche Bank,[1] which concern whether standing committees of Congress have constitutional and statutory authority to enforce subpoenas against private corporations in order to obtain non-government records belonging to the President. From the perspectives of the congressional plaintiffs and the […]

Notice & Comment

Egocentric Bias and the Department of Education: Not Everyone is Aware of Religious Exemption to Title IX , by Kif Augustine-Adams

In a tag-on measure to highly anticipated and deeply controversial new regulations regarding how educational institutions must respond to sexual harassment and assault under Title IX, the Department of Education (DOE) included what it terms a clarification of the rules regarding religious exemption to Title IX.  Specifically, the tag-on measure modifies 34 CFR § 106.12(b) to state that an educational institution controlled by […]

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 […]