In January, I wrote that recess appointments would likely return this year because the same party controls the presidency, Senate, and House of Representatives. With an upcoming recess, I thought now would be a good time to revisit the subject and figure out why I was wrong. The Constitution gives “[t]he President [the] Power to fill up […]
A few months back, I flagged an opinion from a D.C. district court holding that a new EEOC rule governing wellness programs was arbitrary and capricious. The rule allowed employers to impose huge penalties on employees who refused to participate in wellness programs, even though the Americans with Disabilities Act says those programs must be […]
Agency independence is a funny thing. Its existential legitimacy is the subject of a searing debate. The Harvard Law Review solicited an essay from Gillian Metzger that dives into the nature of administrative separation and independence (including with a reply essay from our own Aaron Nielson). And the en banc DC Circuit is currently reviewing […]
The Kozinski drama has been a tragic one on so many levels. Most importantly, if what is alleged is true–and given the nature of the reporting, I’ve seen no reason to doubt it–one of the most prominent judges in the United States has waged a multi-decade campaign of corrosive sexual harassment and assault on clerks, […]
Over at Brookings’ Center on Regulation and Markets, Philip Wallach has started a terrific new Regulatory Process and Perspective Series, with Anne Joseph O’Connell, Rachel Augustine Potter, and Connor Raso as regular contributors. Here is Wallach’s introduction to the series: Regulatory process” is a phrase that can’t help but sound boring— to many people, it […]
Murray-Alexander is going nowhere. Senator Collins insists that passing the bipartisan legislation, which would restore cost-sharing payments for two years, is a condition of her vote on the pending tax bill. But she appears willing to accept airy promises that Senate leadership will make the bill a priority. Never mind that House Republicans have no […]
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) […]
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 […]
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 […]
(Apologies; this post was written quickly — and at 30,000 feet.) This has been a busy week. What to write about? The White House released the Unified Agenda. Unfortunately, I haven’t had a chance to review it yet. The Administrative Conference of the United States finished its plenary session.* Emily Bremer, however, will have that […]
That’s the headline of my latest piece at Vox. Adopting mandates at the state level would help stabilize insurance markets, thereby keeping premiums in check and forestalling coverage losses. It would also provide a welcome source of revenue: Some people will still prefer to pay a penalty than buy insurance. Plus, the states don’t need […]
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 […]
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 […]
The D.C. Circuit issued no opinions this week. But that doesn’t mean there is no news. For instance, Adam Feldman suggested yesterday that Judge Brett Kavanaugh may be “The Next Nominee to the Supreme Court.”* Likewise, Judge Raymond Kethledge of the Sixth Circuit published a significant essay about Chevron — in which he discusses his […]
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 […]