The Trump Administration, using a range of means, has sought to decimate the federal civil service. That has included efforts to fire probationary employees, initiate large-scale reductions in force at multiple agencies, and place large groups of employees on administrative leave. At the same time, the administration has hampered the Merit Systems Protection Board (MSPB), […]
Today’s Ad Law Reading Room entry is “The Lost English Roots of Notice-and-Comment Rulemaking,” by Rephael G. Stern, which was recently published by the Yale Law Journal and posted to SSRN. Here is the abstract: Notice-and-comment rulemaking is arguably the most important procedure in the modern administrative state. Influential accounts even frame it as the […]
It is clear now how the Trump Administration plans to handle what remains of modern administrative law while advancing its agenda. The plan is to break it. Just look at the Administration’s conduct over its first 100 days. Wacky executive orders that are no less dangerous for becoming instantly infamous. Abuses of interim final rules, […]
In National Religious Broadcasters v. FCC, the Fifth Circuit struck down the FCC’s 2024 Rule requiring television and radio broadcasters to annually report employee demographic information using a form known as Form 395-B. The case, brought by a coalition of broadcasters and industry associations, centered on whether the FCC had the statutory authority to mandate […]
Lots of important arguments last week, including in the cases related to the removals of board members from the NLRB and the Merit Systems Protection Board and the CFPB. On the opinion side, the week was less headline-worthy, but still relevant for those interested in the interaction between administrative and judicial remedies. The opinion in […]
When the Supreme Court first articulated the major questions doctrine a few years ago, many viewed it primarily as an antiregulatory tool. But as the Court has applied the doctrine, it is more aptly understood as “an interpretive tool” that draws heavily on “common sense as to the manner in which Congress is likely to […]
In Texas Public Policy Foundation v. United States Department of State, the Fifth Circuit held that the State Department must disclose the names and email addresses of rank-and-file employees pursuant to a FOIA request. The opinion, written by Judge Wilson, forces the Trump Administration to choose whether to take its pitch to the Supreme Court. […]
In defending President Trump’s April 2025 memorandum directing agencies to rescind regulations they deem to be “facially unlawful,” a recent post in this forum misinterprets the scope of the “good cause” exception to the notice-and-comment requirements of the Administrative Procedure Act (APA). The President’s memorandum instructs agencies to invoke the exception in rescinding existing rules, […]
Here is the April 2025 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. For more on why SSRN and this eJournal are such terrific resources for administrative law scholars and practitioners, check out my first post on the subject here. You can […]
One of the many challenging issues the SEC will need to navigate in developing a workable regulatory framework for crypto assets is how to apply the broker-dealer “Net Capital Rule.” This seemingly narrow, esoteric topic will likely play a role in shaping crypto market structure under the emerging U.S. framework—even if new registration categories […]
Who would have guessed that the most hotly contested legal issue in the federal courts in the spring of 2025 would be the propriety of an administrative stay? The D.C. Circuit was once again involved in the multitude of challenges to the multitude of President Trump’s executive orders and, once again, the issue was over […]
The fate of the administrative state turns on the 1935 case Humphrey’s Executor v. United States. In Trump v. Wilcox, currently pending on the Supreme Court’s emergency docket, President Trump has asserted that the Constitution gives him the power to remove Cathy Harris of the Merit Systems Protection Board (MSPB) and Gwynne Wilcox of the […]
Readers may recognize the words in the title of this blog post as lyrics from Gordon Lightfoot’s melancholy ballad, The Wreck of the Edmund Fitzgerald. If you’re interested, it can be heard on any given school morning in my minivan, where it vies with The Devil Went Down to Georgia for “most requested song.” Story […]
ACUS is seeking consultants for six projects directed towards the development of recommendations for 2026-2027.
Today’s Ad Law Reading Room entry is “Appropriations Presidentialism,” by Matthew B. Lawrence, Eloise Pasachoff, and Zachary S. Price, which is forthcoming in the Georgetown Law Journal Online. Here is the abstract: The executive branch is attempting to change how federal spending works by asserting unilateral authority to condition, delay, cancel, or otherwise disrupt federal […]