I am delighted to contribute to this symposium on the 2016 Report to the President-Elect that the American Bar Association’s Section of Administrative Law and Regulatory Practice issued shortly before the presidential election. As Emily Bremer noted in her symposium introduction earlier today, a number of administrative law scholars and experts will be doing short […]
In the past week, there has been a lot of discussion whether Jared Kushner, the son-in-law of Donald Trump, can serve as an advisor to Trump when he takes office. The concern is that hiring Kushner might violate the anti-nepotism laws. Under 5 U.S.C. § 3110(b), a “public official” cannot “appoint” or “employ” a […]
This week I want to try something new. I’ve been thinking about the future of administrative law and have some thoughts for Congress. So why not write a letter? Dear Congress: There are “swirling rumors” that the Senate may pass the Separation of Powers Restoration Act (“SOPRA”) (the House has already passed it). If this […]
While many things in Washington will change as a result of last Tuesday’s results, one thing that will not change is the importance of the D.C. Circuit. The nation’s leading administrative law court will continue to review agency actions in the Trump era, including actions based on agency interpretations of the statutes they administer. And […]
I’m getting a lot of head-scratching questions about the lawsuit, which is now pending at the D.C. Circuit. (For background, see here.) Let me see if I can help. As I see it, there are two distinct questions in play: Does President Trump want to stop making cost-sharing payments on Day One, leading to the […]
We’re pleased to announce the publication of “Navigating Conflicting Roles: The Ethical Obligations of an Organization’s Lawyers Post-Wells Fargo” in the Yale Journal on Regulation Online. The authors, John Rafael Perez, William Stone and Sarah Weiner, discuss the legal regime surrounding a lawyer’s representation of an organization during government-initiated enforcement actions. We’ve copied the introduction to their essay […]
After Justice Scalia’s passing (and even before it), word began to bubble up that he had been seriously rethinking Chevron, given his increasing doubts that the framework was tenable and productive. In the absence of a published opinion, it’s mainly been just the stuff of gossip—although gossip from sufficiently credible sources that I’ve felt confident mentioning it on this […]
Donald Trump is the President-Elect with both houses of Congress at his disposal. He promises judicial nominations to help bring the courts under his sway. He invokes authoritarian rulers as paragons of leadership. Trump’s instinctive reaction to dissent is not to listen, but to destroy. And what hopes lie in the moderating norms of the […]
Proxy access is the ability of certain privileged shareholders to have their own slate of director nominees included in the company’s proxy materials whether or not the board of directors (Board) approves. Proxy materials include a proxy statement used to solicit shareholder votes and a voting card, which allows shareholders to vote without attending the […]
The Data Quality Act (DQA), aka as the Information Quality Act, allows members of the public to file citizen petitions to obtain corrections of inaccurate information disseminated by federal agencies. Consequently the DQA provides a means for the public to obtain corrections in press releases, reports and regulations issued by federal agencies. In essence the […]
The 2016 Federalist Society National Lawyers Convention takes place later this week in Washington, DC. The conference theme this year centers on the jurisprudence and legacy of Justice Scalia. In light of the presidential election surprise last week, the theme will no doubt be more prospective — and not just retrospective — than originally planned. […]
It got lost in the election news last week, but a judge on the Court of Federal Claims has dismissed one of the risk corridor lawsuits. (Background on these lawsuits, which seek several billions of dollars from the U.S. government, is here.) The opinion in Land of Lincoln v. United States is long and complicated, […]
As the Trump administration prepares to take over, it has revealed some of the policy changes it plans to implement. These include reducing environmental restrictions, amping up enforcement of immigration rules, and deregulating businesses. Trump’s administration will no doubt want to implement some of these changes faster than would be possible through the notice-and-comment- process. […]
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 […]