Notice & Comment

Notice & Comment

Notice & Comment

Congress Just Allowed President Trump to Estimate the Official Costs of Tax Reform

Republicans plan to pass a deficit increasing tax-reform proposal, but the Pay-As-You-Go Act (PAYGO) requires that legislation cannot increase the deficit within a five-year or ten-year window.  If legislation would increase the deficit in either window, an offsetting, automatic sequestration would kick in.  Although the non-partisan Congressional Budget Office (CBO) and Joint Committee on Taxation (JCT) […]

Notice & Comment

Regulatory Review Series on Verkuil’s Valuing Bureaucracy

Paul Verkuil, former Chair of the Administrative Conference of the United States and former law school dean at Tulane and Cardozo, published an important new book this summer entitled Valuing Bureaucracy: The Case for Professional Government (Cambridge University Press). Here’s the description of the book from the CUP website: To be effective, government must be […]

Notice & Comment

Enjoining the contraception rules

On Friday afternoon, a district court in Pennsylvania enjoined the Trump administration’s new rules on contraception coverage from taking effect. The court’s ruling was not unexpected: I’d argued earlier that the rules were vulnerable on both procedural and substantive grounds, and the court’s analysis largely tracks my own. Procedurally, the Trump administration had no good […]

Notice & Comment

Trump’s Obstruction of Justice Defense and the Bribery Counterargument

My prior posts have described some constitutional challenges facing any criminal prosecution of President Trump for an official act, such as the firing of FBI Director James Comey. A legislature’s attempt to criminalize a President’s official acts would raise separation of powers problems and would seem inconsistent with the great legal protection otherwise afforded to […]

Notice & Comment

The Gimmick Republicans Could Use to Avoid a PAYGO Sequestration

Republicans plan to pass a deficit increasing tax-reform proposal, but the Pay-As-You-Go Act (PAYGO) would require a sequestration, an automatic reduction in spending, if tax reform increased the deficit.  Republicans could avoid a sequestration by convincing Senate Democrats to support legislation lifting the sequestration.  Democrats, however, might not be willing to compromise on an issue […]

Notice & Comment

Government Funding Ends Today (Not Tomorrow)

This blog post updates two of my previous blog posts regarding continuing resolutions ending a day earlier than intended. Unlike the December 8 date that Congress and commentators believe is the deadline for a government shutdown, a close reading of the Continuing Appropriations Act, 2018 (“CR”) shows that the deadline is likely a day earlier. The […]

Notice & Comment

Perspectives on the FCC’s Proposed Restoring Internet Freedom Order

The Free State Foundation has released a set of short, generally positive reactions to FCC Chairman Ajit Pai’s proposed Restoring Internet Freedom Order, which would undo the FCC’s net neutrality/open internet order. The contributors include Babette Boliek, Timothy Brennan, Michelle Connolly, Robert Crandall, Richard Epstein, Gus Hurwitz, Daniel Lyons, James Prieger, and Christopher Yoo. I also contributed a […]

Notice & Comment

The CFTC and SEC Are Demanding Unconstitutional Speech Bans in Their Settlement Agreements, by James Valvo

Many federal agencies have the authority to bring civil complaints against individuals accused of violating applicable statues or regulations. Those agencies also have the authority to enter into settlement agreements with the accused defendants. The Commodity Futures Trading Commission (“CFTC”) and Securities and Exchange Commission (“SEC”) both have a policy of requiring a provision in […]

Notice & Comment

The SEC’s Subdelegated Appointments Power

Yesterday, the Securities and Exchange Commission (SEC) hedged its bets: it issued an order ratifying the prior appointments of its administrative law judges (ALJs). The order also called for fresh proceedings in pending actions before these newly-blessed ALJs. The SEC did all of this to “put to rest” the argument — now pursued by the […]