The D.C. Circuit does not normally issue opinions on Mondays, but it did this week — and the opinion is a noteworthy one. In Clean Air Council v. Pruitt, a per curiam panel (Judges Tatel and Wilkins) held that EPA lacks authority under the Clean Air Act to stay implementation of a regulation governing methane […]
At its 67th Plenary Session, held Friday, June 16th, the Assembly of the Administrative Conference adopted two new recommendations: Recommendation 2017-1, Adjudication Materials on Agency Websites and Recommendation 2017-2, Negotiated Rulemaking and Other Options for Public Engagement. As described on ACUS’s website: Recommendation 2017-1, Adjudication Materials on Agency Websites provides guidance regarding the online dissemination of administrative […]
Here at Notice & Comment, we square our shoulders and address the hard questions. No matter how controversial, no matter how divisive, we do not flinch from this duty. After all, we fill our bellies here with meat, not milk; we put away childish things. The time therefore has come for all right-thinking men and […]
Uniform Law Commission Acts and Projects Part 3 The Uniform Criminal Records Accuracy Act Many developments concerning criminal records have occurred over the past twenty years, including the creation of the National Criminal Background Check System in 1993, the establishment of criminal history repositories in all states, and the increasing use of criminal record checks […]
Together with Craig Garthwaite, a professor at Northwestern, I’ve got an op-ed in the New York Times on the consequences of the Republicans’ strategy to sabotage the Affordable Care Act. The health care industry consists of a dense network of public-private partnerships. Even programs widely viewed as “government” insurance, like Medicare and Medicaid, depend on […]
The U.S. Office of the Comptroller of the Currency (“OCC”) is the federal agency responsible for chartering national banks. See 12 U.S.C. § 1. This past March, after a year-long public dialogue with various sectors of the financial services industry regarding “Responsible Innovation in the Federal Banking System,” the OCC “determined that it is in […]
The central theme of the Republican campaign to repeal the Affordable Care Act has been freedom: freedom from Obamacare’s onerous regulations, freedom from overpriced insurance and most of all, freedom from the tyrannical individual mandate. The Senate has now released its long-awaited alternative to Obama-era health reform. Although the Better Care Reconciliation Act is embattled, there’s still a decent […]
As Aaron Nielson has reported on this blog, yesterday afternoon the D.C. Circuit issued a judgment in the SEC ALJ case. The judgment essentially reinstates the D.C. Circuit’s earlier panel decision finding that the ALJs are not Article II “officers” subject to the Constitution’s Appointments Clause requirements. The judgment thus also reinstates the D.C. Circuit’s […]
The Senate has now released the Better Care Reconciliation Act of 2017, its answer to the House’s American Health Care Act. The bill is wildly unpopular and has already come under fire from Senate Republicans, either for being too mean or not mean enough. But some version of the BCRA may still get 50 votes […]
Editor’s Note: Aneil Kovvali recently published a longer essay on this subject in the Yale Journal on Regulation Bulletin. You can access it here. Recent events have brought renewed attention to statutes designed to constrain the president. Troublingly, such statutes are often given limited constructions that weaken their force. Under the constitutional avoidance canon, statutes […]
The D.C. Circuit just issued an unusual order in the ongoing saga of Raymond J. Lucia Companies, Inc. v. SEC. I won’t repeat the full background here; this post already does the trick. The dispute is whether SEC administrative law judges are “inferior officers” for purposes of Article II. The Tenth Circuit has held that […]
Technology has promised big benefits for public participation in notice-and comment rulemaking, but it has also presented new challenges for agencies. For example, as the number of rulemaking comments has increased, so too has the administrative burden of reviewing those comments. Can an agency use computer software to help ease this burden while still discharging its obligations under the APA? Melissa Mortazavi addresses […]
Agencies often share their power with one another—the operative word being ‘share.’ For instance, they engage in “joint rulemaking” with other agencies on the basis of shared statutory authority. They also participate in “coordinated interagency adjudication,” in which they subdelegate portions of their power to adjudicate administrative claims or otherwise share the responsibility of furthering an adjudication process on […]
Cross-posted on Objective Intent and Stanford’s Law and the Biosciences Blog. Industry funding of patient advocacy organizations recently has received attention from media and researchers. For example, one 2017 study in the New England Journal of Medicine found that over 80% of patient advocacy organizations with annual revenues of at least $7.5 million reported receiving industry […]
It is now summer. How do we know this? Sure, you could just go outside and feel the sun.* Or you could look at a calendar. But there is another way. You can count the number of decisions issued by the D.C. Circuit! Come summer, the Court starts issuing lots (and lots) of opinions. This […]