For obvious reasons, a lot of folks are thinking hard about Judge Brett Kavanaugh. So today seems like a good one to share some preliminary thoughts, especially because the Senate Judiciary Committee will soon schedule hearings. I’ve been following the D.C. Circuit for a while now. And by any measure, Judge Kavanaugh is a major […]
Posts to this blog have justifiably focused on Lucia v. SEC, 138 S.Ct. 2044 (June 21, 2018), the recent Executive Order entitled “Excepting Administrative Law Judges from the Competitive Service,” and the resultant implications for the administrative judiciary’s independence. But in the meantime, President Trump has issued three executive orders addressing job protections and related […]
Yesterday, President Trump issued an Executive Order exempting administrative law judges from the competitive selection process and stripping them of the removal protections provided by civil service regulations. Under the order, agency heads have much broader discretion over the hiring and firing of ALJs. The changes to the hiring process are unsurprising. This term, in […]
Donald Trump is our first Twitter President. He comments on public issues, outlines his plans, and excoriates various villains, all in 280 words or less. In Knight First Amendment Institute v. Trump, 302 F.Supp.3d 541 (S.D.N.Y. 2018), appeal filed, Dkt. No. 18-1691 (2d Cir. June 5, 2018), Judge Naomi Reice Buchwald addressed a challenge by […]
As Andy Hessick has blogged here, President Trump yesterday issued an executive order (EO) that alters how federal administrative law judges (ALJs) are appointed. Although I am not an expert on the interworking of the federal civil service, my initial impression is that the altered hiring model has benefits, but also potentially serious drawbacks. Under […]
Last month, in a step that received relatively little attention, the EPA issued an Advanced Notice of Proposed Rulemaking soliciting comments on its use of cost-benefit analysis. As the Notice explains, the EPA is required by a series of executive orders to conduct a cost-benefit analysis (“CBA”) each time it promulgates a major rule. (For […]
In her recent dissent in Janus v. AFSCME, Justice Kagan accused the majority of “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” Judge Kavanaugh, now nominated to fill Justice Kennedy’s seat on the Supreme Court, might be accused of doing the […]
When President Obama nominated Chief Judge Garland to the Supreme Court, I put together a list of his dissents and concurrences. As I explained then: President Trump has just nominated Judge Brett Kavanaugh to the Supreme Court. With the help of two hard-working research assistants* I’ve put together a similar list for him. Note that […]
On Friday evening, the Wall Street Journal reported that the Trump administration would be suspending risk adjustment payments due for 2017 and 2018. The next day, CMS scurried to clarify that the suspension was a necessary response to an adverse court judgment out of New Mexico. “As a result of this litigation,” Administrator Seema Verma […]
Here at Notice and Comment two years ago, we did an online symposium on the future of Auer (aka Seminole Rock) deference — the doctrine that commands courts to defer to a federal agency’s interpretation of its own regulation unless the agency’s interpretation is “plainly erroneous or inconsistent with the regulation.” In recent years, as I detail […]
If you’re looking for a little light poolside reading, check out the three new recommendations and other actions taken by ACUS at its 69th Plenary session last month. The recommendations address the Paperwork Reduction Act, severability in judicial review of agency rulemaking, and electronic case management in adjudication. In addition to adopting these recommendations, the Assembly recommitted […]
The President will soon nominate a replacement for Justice Kennedy. Different folks have their favorites. That’s understandable — there are many talented folks in the mix.* What is less understandable are some of the attacks made on potential nominees by supporters of other nominees. To be sure, I have no objection to fair criticism; this […]
President Trump has announced that next Monday, July 9th, he will nominate someone to fill the Supreme Court vacancy left by Justice Kennedy’s retirement last week. According to David Lat, who is arguably the best source on judicial nominations in the Trump Administration, President Trump has interviewed four candidates so far. Here at the Notice […]
Joan Larsen’s name has come up repeatedly as a potential nominee for the Supreme Court. After she learned she was on then-candidate Donald Trump’s list of potential Supreme Court nominees, she even recused from a case involving the election. Now, it seems, the speculation about whether she might be nominated is heating up again. After […]
The cause of overruling Chevron continues to gather momentum. (This post will appear nestled among several that parse the views of potential nominees to the United States Supreme Court regarding judicial deference.) It is notable, then, that the day before Justice Kennedy announced his retirement, the Wisconsin Supreme Court issued a spirited anti-Chevron manifesto, written […]