Last week, Adrian Vermeule posted thoughts here on the Separation of Powers Restoration Act (“SOPRA”). In the words of Bill Funk, SOPRA “would amend the Administrative Procedure Act to require courts to decide de novo all questions of law, whether constitutional, statutory, or regulatory. As the House Report makes abundantly clear, the intent is to […]
The IRS was actively involved in implementing various policy objectives of the Obama Administration and issued various controversial regulations, including those dealing with the Affordable Care Act. With Donald Trump soon to step into the Oval Office, one may wonder about the extent to which the Trump Administration can reverse regulations issued by the Treasury/IRS […]
This week has been, shall we say, an eventful one. With so many stories to choose from, I’ve wondered what I should write about. For instance, what is going to happen in PHH Corp v. CFPB? That decision has become much more important. Now that “for cause” removal for the CFPB Director is gone, presumably […]
With the caveat that this is a bad week for predictions, I’d like to offer my thoughts on what might happen next to the Affordable Care Act. I suspect there’s a pretty relentless political logic that’s about to take hold. For starters, I doubt that Republicans will be able to coalesce around an alternative to Obamacare. […]
Earlier this year,* I moderated a teleforum for the ABA Section of Administrative Law and Regulatory Practice’s Rulemaking Committee on the Congressional Review Act. You can access the recording for free here. The panel discusses the CRA from a number of different perspectives. After the events of this week, the CRA has become much more […]
When it comes to the ACA, the first major question facing an incoming President Trump will be whether to terminate cost-sharing payments to health plans. Already, prominent voices are calling on him to immediately cut off payments. What effect would that have? And what are his options? Under the ACA, health plans are required to […]
My guess is that the Trump Transition Team is feeling pretty overwhelmed right now, so I’ll keep this initial post short and sweet. But I did want to share a few thoughts on the regulatory state that may be of value to the Transition Team as they identify key political appointees and first priorities for […]
There are apparently swirling rumors that the Trump people, and Republican senators, may agree to enact the Separation of Powers Restoration Act of 2016. The Act, having passed the House, is now before the Senate Judiciary Committee. It instructs courts, inter alia, to “decide de novo all relevant questions of law, including the interpretation of […]
I write about law for a living. Over the past five years or so, I’ve committed my time and my pen to saying what the law does and doesn’t allow the president to do, even when that’s made me unpopular with my friends. I’ve pored over statutes, parsed Federal Register notices, dredged the case law, […]
Stepping away from research interests for a post, I thought I’d pose a teaching-related question to the bloggers and readers of Notice and Comment: for which courses that you (or others you know) teach is Administrative Law a mandatory prerequisite? After two weekends spent at conferences where I had a chance to catch up with […]
The ABA Section of Administrative Law and Regulatory Practice has just released its 2016 Report to the President-Elect on Improving the Administrative Process. In keeping with its practice in previous election years, the Section has delivered the report to the transition teams of the two major party candidates for President. I had the good fortune of working […]
Today is an important anniversary: 25 years ago, on November 5, 1991, Justice Clarence Thomas asked his first question as a member of the U.S. Supreme Court. Earlier this week, I posted an essay I co-authored with RonNell Andersen Jones that collects and analyzes his questions. Today, I’ll use D.C. Circuit Review – Reviewed to […]
Here is the October 2016 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 really terrific set of papers. Law in the Anthropocene Epoch by Eric Biber [CJW Note: I’m a big fan of Biber’s coauthored work […]
Ashish Jha has a new post on antitrust problems in the health-care industry: A robust literature on the benefits of competition in the health care marketplace shows that when health care markets are competitive, prices tend to be lower, quality tends to be higher, and people have more choices for care. Competition is a remarkably powerful tool […]
Earlier this week, the NYTimes published an article on a tax strategy apparently used by Donald Trump in 1991 to reduce his taxable income. The ensuing commentary has focused heavily on the mechanics of the tax strategy, and has emphasized that though there was apparently “substantial authority” for the tax positions claimed by Trump, those […]