One of the many challenging issues the SEC will need to navigate in developing a workable regulatory framework for crypto assets is how to apply the broker-dealer “Net Capital Rule.” This seemingly narrow, esoteric topic will likely play a role in shaping crypto market structure under the emerging U.S. framework—even if new registration categories […]
Who would have guessed that the most hotly contested legal issue in the federal courts in the spring of 2025 would be the propriety of an administrative stay? The D.C. Circuit was once again involved in the multitude of challenges to the multitude of President Trump’s executive orders and, once again, the issue was over […]
The fate of the administrative state turns on the 1935 case Humphrey’s Executor v. United States. In Trump v. Wilcox, currently pending on the Supreme Court’s emergency docket, President Trump has asserted that the Constitution gives him the power to remove Cathy Harris of the Merit Systems Protection Board (MSPB) and Gwynne Wilcox of the […]
Readers may recognize the words in the title of this blog post as lyrics from Gordon Lightfoot’s melancholy ballad, The Wreck of the Edmund Fitzgerald. If you’re interested, it can be heard on any given school morning in my minivan, where it vies with The Devil Went Down to Georgia for “most requested song.” Story […]
ACUS is seeking consultants for six projects directed towards the development of recommendations for 2026-2027.
Today’s Ad Law Reading Room entry is “Appropriations Presidentialism,” by Matthew B. Lawrence, Eloise Pasachoff, and Zachary S. Price, which is forthcoming in the Georgetown Law Journal Online. Here is the abstract: The executive branch is attempting to change how federal spending works by asserting unilateral authority to condition, delay, cancel, or otherwise disrupt federal […]
The battle lines in the war over the administrative state have been years in the making, and several Supreme Court decisions in 2024 made clear that the battle has been joined. One of them was the Court’s decision in Securities and Exchange Commission v. Jarkesy, in which it held that an SEC administrative proceeding in […]
Let us stipulate that the federal government is having some problems doing careful analysis generally, much less analysis as to how its actions might affect the states. I believe that my area, tax law, offers some guidance as to how states should proceed. First, some context. Over forty states with income taxes conform to federal […]
Eli Nachmany just wrote a characteristically insightful piece on the current administration’s ability to use the APA’s “good cause” exception to “accelerate repeals of unlawful agency rules.” His argument is straightforward: “The Administrative Procedure Act usually requires agencies to give public notice and allow interested parties to file comments whenever the agency wants to issue […]
Introduction July 4, 1776, declared our independence from a king. April 2025 may mark the month we hand that same power to a president. When President Trump summarily dismissed Federal Trade Commissioner Rebecca Slaughter, he did more than fire a bureaucrat—he launched a constitutional transformation. With a stroke of a pen, he swept aside decades […]
In AT&T v. FCC, the Fifth Circuit vacated a $57 million forfeiture order issued by the Federal Communications Commission, ruling that the agency’s internal enforcement process violated AT&T’s constitutional rights under Article III and the Seventh Amendment. The opinion, authored by Judge Stuart Kyle Duncan, represents one of the most significant applications yet of the […]
The D.C. Circuit entered three administrative stays and decided three administrative law cases on the merits last week. Emergency Orders Alien Enemies Act In J.G.G. v. Trump, this month’s special panel administratively stayed the district court’s interim order on contempt. As Thomas Griffith has discussed on this blog, the district court entered a temporary restraining order prohibiting the removal […]
Deregulation season is in full bloom at the White House. In a recent memorandum, President Donald Trump directed agencies to employ the Administrative Procedure Act’s “good cause” exception to accelerate repeals of unlawful agency rules. After years of regulatory overreach, President Trump’s bold action will help ensure that the executive branch gets back within the […]
This post covers the two published opinions of the D.C. Circuit for the week of April 7. Ateba v. Leavitt addressed a journalist’s First Amendment challenge to the White House Hard Pass Policy. Under this Policy, “[t]he White House issues hard passes,” which afford “preferred access to the White House Press Area,” to “reporters who are accredited […]
The Consumer Financial Protection Bureau’s Payday Lending Rule has had a rough decade. In an effort to protect consumers from abusive financial practices, the Rule prohibits lenders from continuing to attempt to withdraw a payment from an account after the second failed attempt and requires lenders to provide certain disclosures before attempting a withdrawal. CFPB […]