The European Union and some of its Member States are beginning to introduce enhanced public participation in executive regulatory processes at the same time as the United States, long the leader in such procedures, is cutting back by making the promulgation of rules increasingly difficult. We outline developments in the EU and Germany to provide […]
Two former OIRA Administrators are testifying tomorrow morning in a hearing that might re-kindle regulatory reform efforts in Congress. As Chris Walker has covered on this blog, the 115th Congress had a flurry of regulatory reform activity, none of which was enacted. This is the first Senate hearing in the 116th to take up regulatory reform.* […]
The D.C. Circuit gets more than its fair share of regulatory cases. But it does not have a monopoly on them. As regular Notice & Comment readers know, the Ninth Circuit also has a sizable “admin law” docket. The same can be said of the Fifth Circuit. And then-Judge Gorsuch decided a number of important […]
My prior posts have explored some of the constitutional issues related to the battle for President Trump’s tax returns. I’ve now posted a full length law review article, “The President’s Tax Returns,” and would appreciate reader comments. Here’s the abstract: The President’s Tax Returns This Article examines whether congressional committees enjoy the unrestricted authority to demand […]
Nick Parrillo’s article on the binding effect of guidance is brilliant. It formed the basis for ACUS Recommendation 2017-5 which furnishes best practice suggestions for mitigating the de facto binding effect of guidance. Yet ACUS had to work within the constraints of the APA’s primitive treatment of guidance and the dubious and result-oriented case law […]
Nicholas Parrillo has written a most fair-minded evaluation of federal agency guidance. He is careful to point out the great benefits guidance provides to agencies, the public and even to regulated entities, in the form of increased consistency and accountability in agency discretion in implementing statutes, as well as increased notice to regulated entities about […]
13th Annual Homeland Security Law Institute Friday May 31, 2019 | Ritz-Carlton Pentagon City, Arlington, VA We are excited to announce an updated agenda for the 13th Annual Homeland Security Law Institute, including Co-Sponsorships from: The ABA Standing Committee on Law and National Security The ABA Senior Lawyers Division The ABA Infrastructure and Regulated Industries […]
Terrific news for readers of the Notice & Comment blog! (That is, you.) The Yale Journal on Regulation has organized another on-line symposium. This one focuses on how legally nonbinding guidance documents can potentially have a binding impact in practice, using as a focal point Professor Nicholas Parrillo’s article, Federal Agency Guidance and the Power […]
Federal agency guidance — though essential and ubiquitous — has long been a matter of controversy. It must be nonbinding as a matter of law, and yet one often hears complaints that it is binding as a matter of practice. This tension is the subject of the present symposium, in which I’m delighted to participate […]
In a series of blog posts, I have suggested that envisioning the 1967 Refugee Protocol as a simple amendment to the 1951 Convention, and fixating solely upon it eliminating the words ‘as a result of events occurring before 1 January 1951’, doesn’t capture the complexity of the Protocol’s creation, the context within which it was […]
In mid-May, the GW Regulatory Studies Center will host UVA Professor Rachel A. Potter to discuss her new book “Bending the Rules: Procedural Politicking in the Bureaucracy.” From the University of Chicago Press summary: “With Bending the Rules, Rachel Augustine Potter shows that rulemaking is not the rote administrative activity it is commonly imagined to be but […]
This spring has produced a lot of great administrative law scholarship and a robust and exciting summer reading list. Here is the March 2019 Edition of the most-downloaded recent papers (those announced in the last 60 days) from SSRN’s U.S. Administrative Law eJournal, which is edited by Bill Funk. Article II Vests Executive Power, Not […]
Each week, I try to come up with some theme to tie the Court’s cases together. But what to do when I’m traveling?* Here’s a solution — a Get Out of Jail Free card! I can’t play this card often. But this week? I’m going to play it. * * * One thing I enjoy […]
Summary: This post chronicles a story of enforcement failure, shaming remedies, and replacement of proactive disclosure with reactive disclosure. In February 2017, the Animal and Plant Health Inspection Service (“APHIS”) “took down” publicly-available databases and re-populated them with significant redactions. The D.C. Circuit recently opined on APHIS’s action in PETA v. U.S. Department of Agriculture. […]
Next Thursday, May 2nd, the C. Boyden Gray Center for the Study of the Administrative State will be hosting a conference on the Hill entitled The Constitution’s First Branch⏤Rediscovering the Legislative Power. Jonathan Adler and I will be participating on the first panel to discuss our current project on Congress’s role in addressing the temporal issues […]