Notice & Comment

Notice & Comment

Notice & Comment

Regulatory Reform and Political Vetoes, by Todd Phillips

Medicare and Medicaid were enacted in 1965, and for more than four decades, advocates fought for universal health insurance largely without success. Then, in 2009, the first major priority of the Democratic-controlled House, 59-vote Democratic majority Senate, and Democratic President was to enact the Affordable Care Act, bringing health insurance to millions. These politicians passed […]

Notice & Comment

Regulating Impartiality in Agency Adjudication, by Kent Barnett

To Justice Breyer’s chagrin, the Court in Lucia v. SEC and Free Enterprise Fund v. PCAOB expressly declined to resolve whether the U.S. Constitution condones statutory protection from at-will removal for administrative law judges and other similarly situated agency adjudicators. These thousands of adjudicators enjoy two layers of for-cause statutory protections between them and the […]

Notice & Comment

Jotwell Administrative Law Section 2019 Year-End Review

As I first noted on the blog five years ago, the Administrative Law Section of Jotwell—The Journal of Things We Like (Lots)—is a terrific resource for administrative law practitioners and scholars. Jotwell’s Administrative Law Section publishes monthly a short review of a current piece of administrative law scholarship, usually authored by one of our contributing editors who are all leading […]

Notice & Comment

GAO Rebukes OIRA for Working on Rules During Shutdown

In a letter issued yesterday, the general counsel of the U.S. Government Accountability Office (GAO) opined that the Office of Information and Regulatory Affairs (OIRA) violated the Antideficiency Act (ADA) when it worked on Department of Labor rules during last winter’s government shutdown. Shutdowns happen when an agency does not have an appropriation from Congress. […]

Notice & Comment

FCC’s “Final Agency Action” to Restore Internet Freedom Preempts State Net Neutrality Laws, by Seth L. Cooper

Pursuant to the Constitution’s Article VI Supremacy Clause, federal laws and regulations preempt conflicting state laws. But may state laws be preempted when they clash with a federal policy of nonregulation? The answer to that question may well determine whether the Federal Communications Commission’s 2018 Restoring Internet Freedom Order (RIF Order) preempts state net neutrality […]

Notice & Comment

Call for Papers: ACS’s Richard D. Cudahy Writing Competition on Regulatory and Administrative Law

From the American Constitution Society website: About the Cudahy Competition The American Constitution Society is pleased to announce the Thirteenth Annual Richard D. Cudahy Writing Competition on Regulatory and Administrative Law. Judge Cudahy’s distinguished contributions to the fields of regulatory and administrative law combined a keen grasp of legal doctrine, deep insight into the institutional […]

Notice & Comment

Nondelegation’s Gerrymander Problem

For all of its encouraging moments, the Justice Department’s “Summit on Modernizing the Administrative Procedure Act” was also replete with reminders that the difficulties of modern administrative law are in large part the ramifications of the light-handed Nondelegation Doctrine. When agencies are given enormous power, we reliably reach for auxiliary precautions to encourage steady, accountable […]

Notice & Comment

Please Spare Us the Return of “Formal” Rulemaking, by Jeffrey S. Lubbers

On December 7, the Department of Justice held an unusual “summit” on reforming the Administrative Procedure Act in its Great Hall.  The keynote speaker was Deputy Attorney General Jeffrey A. Rosen. The major theme of its three panels was that it was past time for the APA to be “modernized.”  Various suggestions were heard ranging […]

Notice & Comment

Levin Receives ABA Administrative Law Section 2019 Annual Award for Legal Scholarship, by Ronald Krotoszynski

On Friday, November 15, 2019, at the section’s annual fall meeting, I was pleased to present the ABA Administrative Law Section’s Award for the Best Scholarship in the field published in 2018 (which the 2019 award recognizes). The section’s award committee, which I chair, includes Bill Araiza, Jack Beermann, Jonathan Cedarbaum, Neal Devins, and Emily […]