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 […]
Here is the November 2017 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. And it’s a terrific set of papers, perfect timing for law professor winter break reading (after grading finals!). You’ll note one recurring theme: The 2017 […]
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 […]
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 […]
Republicans hope to pass tax reform before Christmas so that they can go back to their constituents over the Winter Holidays and talk about their accomplishments. However, because of the Pay-As-You-Go Act (PAYGO), passing tax reform at the end of the year would be the worst possible time to pass tax reform as it would […]
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 […]
I haven’t counted but I suspect — with the possible exception of symposium weeks — that this week has been the busiest in the history of Notice & Comment. We have had posts aplenty about the CFPB. There was a mini-debate about whether Chenery II poses a threat to liberty (Richard Pierce says “never,” I […]
A draft of my latest paper — Optimal Ossification — is now available. It will be published next spring in the George Washington Law Review’s annual administrative law issue.* Here is the abstract: One of the dirtiest words in administrative law is “ossification”—the term used for the notion that procedural requirements force agencies to spend […]
Anne Joseph O’Connell has organized a terrific ABA teleforum on the CFPB dueling directors dispute for December 4, 2017, from 3PM-4PM eastern. It’s free and open to the public, but you must register here. [12/1 Update: The ABA has recruited two additional panelists — Nina Mendelson and Jonathan Adlaw — so I’ve updated the post […]