Nick Parrillo’s publications are like Robert Caro’s – so synoptic, and so exhaustively researched, that it’s inconceivable that anyone could do a better job. As a result, it’s a daunting prospect to quibble with any of his conclusions and recommendations – much less to dispute them fundamentally. What’s more, as a practitioner – and one […]
Everyone familiar with the intertwined spheres of administrative law and regulatory practice knows that federal agencies routinely issue informal, subregulatory pronouncements, referred to collectively as “guidance,” articulating their views regarding the law’s requirements. Agency use, and arguable abuse, of guidance to direct the behavior of regulated parties and agency employees is a perennial topic of […]
The REINS Act would have required Congress to approve all new “major” rules before they could go into effect. A significant re-ordering of the regulatory process, it was one of many regulatory reform bills that was introduced but not enacted in the 115th Congress. The REINS Act reflected aspects of a larger movement to strengthen the […]
The year 2019 may prove to be a landmark one for the question of the proper role of agency guidance documents (or “non-legislative rules”). Within the next month or two, the Supreme Court will reach a decision on Kisor v. Wilkie where the question of judicial deference to agency’s interpretation of their regulations is at […]
Nick Parrillo’s article Federal Agency Guidance and the Power to Bind is a truly admirable study of the realities underlying agencies’ creation and use of guidance documents. It will doubtless stand as a definitive examination of the practical factors that can cause informal agency pronouncements to exert coercive pressure on private persons, even when those […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” This month I highlight a fascinating loophole in APA § 701(a)(2)’s preclusion of judicial review for action “committed to agency discretion by law.” In practice, Article III courts recognize two types of actions […]
I don’t know, and I doubt the Trump administration does either. But we may soon find out. With the Trump administration’s encouragement, Tennessee is moving ahead with a waiver to block grant its Medicaid program under section 1115 of the Social Security Act. “Currently,” as Stephanie Armour explains at the Wall Street Journal, “Tennessee, like […]
Inhabitants of the administrative state who are concerned about the rule of law may be comforted by the fact that there are rules about making rules. The Administrative Procedure Act (“APA”) requires regulatory agencies to expose prospective rules to democratic processes, most notably the notice and comment period, before they become binding. “Guidance” – regulatory […]
Regulated entities love guidance when they agree with it or are ambivalent about it. It is valuable information to have. Not surprisingly, however, if they disagree with the substance of the guidance, and the guidance will impose costs of one sort or another on them, they do not like it. They have a choice in […]
When I saw that this blog had added a regular feature on administrative-law happenings in the Ninth Circuit, I knew it was time to propose a similar D.C. Circuit-Review-Reviewed-style column for the Fifth Circuit. I already report on important administrative law decisions from the Fifth Circuit (as well as other topics) on my own blog, […]
Nicholas Parrillo’s Federal Agency Guidance and the Power to Bind provides an important window into the perspectives of diverse stakeholders on the use, structure, and influence of agency guidance. Parrillo ultimately argues that agencies adopt, and regulated or interested stakeholders internalize, guidance through a complex process that belies simplistic assertions that agencies, more or less, […]
Last fall, in the Vanderbilt Law Review, Kent Barnett, Christina Boyd, and I published the latest article from our Chevron in the circuit courts dataset, titled Administrative Law’s Political Dynamics. Here’s the abstract for that paper: Over thirty years ago, the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. commanded courts to […]
From the University of La Verne Law Review: The University of La Verne College of Law will hold an Aviation Law Symposium on Friday, January 24, 2020, in La Verne, California in partnership with the University of La Verne Law Review. The aim of the symposium is to bring city attorneys and county counsel (in […]
The worrisome practical effect of guidance is a key concern for administrative law scholars like Robert Anthony, who wrote the first ACUS report on guidance. Scholars have not stopped worrying. A new way to assess guidance is to see how it operates on the ground. That is, does it make real change in the regulated […]
Immigration law can serve as a useful lens to examine broad administrative law principles because the nature of regulation in immigration law is distinctive. The regulated party is an individual noncitizen. The regulation includes restrictions on fundamental life decisions such as where one will live and work. While it is true that no two agencies […]