This month’s en banc D.C. Circuit decision in PHH Corp. v. CFPB has understandably received widespread attention for upholding the constitutionality of the CFPB’s structure in the face of a separation-of-powers challenge. But somewhat hidden within the hundreds of pages of separate opinions in PHH was another constitutional ruling—one on which the CFPB lost and […]
The line between a court and an administrative agency is fuzzy—but two cases this Term suggest that the Justices have an appetite for making it at least somewhat sharper. A couple of weeks ago, the Court heard Dalmazzi v. Unites States, a case in which the Justices made the unusual move of granting the motion […]
This month’s SSRN reading list likely constitutes the calm before the storm of new administrative law scholarship, as the spring law review season opens up and scholars begin posting new articles to SSRN. But January was still a solid month for new scholarship. Here is the January 2018 edition of the most-downloaded recent papers (those […]
The Office of Information and Regulatory Affairs is hiring a Policy Analyst! This is a great opportunity that doesn’t come around very often. From the job advertisement: The Office of Information and Regulatory Affairs (OIRA), within the Office of Management and Budget (OMB), is seeking candidates for a policy analyst position in OIRA’s Information Policy […]
If you peruse the D.C. Circuit’s webpage often — and, really, who doesn’t? 😉 — you’ve no doubt noticed an announcement that hasn’t changed for a long time: This may confuse you. First, why is dated “2014-15”? And second, why is an announcement about clerkship hiring of all things given arguably the most prominent placement […]
The federal government recently shut down for three days because the Senate could not pass an appropriations bill with a filibuster-proof majority. In response, President Trump and House Republicans suggested eliminating the filibuster for appropriations bills. However, eliminating such a filibuster would likely have prevented the Senate from considering the failed continuing resolution that Republicans […]
It’s no secret that agencies communicate with the public. Nor is it a secret that the public often listens. It is worth thinking about, however, why the public listens. Sometimes, of course, it is a not a mystery why what an agency says is important. Imagine, for instance, that an agency has authority to waive […]
The Administrative Procedure Act and the question of judicial deference to agency action may be at the center of the typical Ad Law course syllabus. But they are far from the main topics in the story of How Agencies Communicate uncovered in this symposium. Rather than studiously following the notice and comment process to produce […]
Earlier this week, as I was reading the en banc decision in PHH Corp. CFPB, it struck me that the Court cited a large number of law review articles. So for this bonus edition of D.C. Circuit Review – Reviewed, I asked my dutiful research assistants to put together a chart of the articles cited […]
In administrative law doctrine, much significance is placed not only on what agencies say but on the format they use to say it. Interpretations of statutes expressed in legislative rules carry the force of law—i.e., are legally binding on private parties—so must comply with Administrative Procedure Act (APA) notice and comment requirements and usually are […]
The Administrative Conference of the United States (ACUS) tracks the various regulatory reform bills on a pretty regular basis. This is a terrific resource for those interested in understanding the various proposals being considered in Congress. ACUS just posted an updated summary here. Here is the description of the project: In the last several sessions […]
As Elizabeth Porter and Kathryn Watts noted in their contribution to this symposium on how agencies communicate (as well as Michael Herz in his contribution), federal agencies have begun to utilize social media and other channels to explain and promote their preferred regulatory outcomes. Sometimes such communications take place during the public comment period on […]
The most official way for an agency to communicate with the public is through binding legislative rulemaking. But an agency can send out communications much faster, and at higher volume, if it communicates by guidance—that is, by general public statements, nonbinding, giving its current thinking on how it will interpret the law and use its […]
When regulated entities or the public want to know what a regulation means, where do they look? They will, of course, focus on the text of the regulation. But what other sources bear on how regulations apply? In particular, what is the most authoritative source agencies issue to assist in determining the meaning and application […]
That’s the title of a new piece of mine that came out in JAMA this morning. It’s pretty timely: a lawsuit was filed last week challenging CMS’s approval of Kentucky’s waiver, which includes work requirements. More waivers, and more litigation, are sure to come. I’m no fan of work requirements. They’re harsh, stigmatizing, and ineffective. And they will hurt people, […]