In King, the government is looking to demonstrate from the broader context of the Act that Congress didn’t mean to withdraw tax credits from states with federal back-up exchanges. That context includes three stopgap measures designed to afford temporary relief until the exchanges went live. One of those measures has received a lot of attention: […]
Yesterday the Supreme Court heard argument in Perez v. Mortgage Bankers Association, which presents an important administrative law question of whether notice-and-comment rulemaking is required when an agency significantly alters an interpretive rule that sets forth the agency’s interpretation of its own regulation. Jeff has done two very thoughtful posts about the case here and here, and […]
On November 18, the U.S. House voted (mostly on partly lines) to pass the EPA Science Advisory Board Act of 2014. Although the name of the Act is pretty dull, its impact would be significant. Among other problems, the bill would make the EPA Science Advisory Board (SAB) less scientific, and it would prohibit it […]
Before the Supreme Court granted King v. Burwell, the Journal on Health Politics, Policy and Law invited me to write a counterpoint to an essay by Jonathan Adler and Michael Cannon, two of the architects of the litigation. I’m pleased to report that drafts of their point and my counterpoint are now available. Writing the […]
Here is the November 2014 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 William 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 […]
I’m very happy to join the other contributors to the Yale Journal on Regulation’s Notice and Comment Blog. I am an Associate Professor of Law at Notre Dame, and my research is principally in the areas of environmental and energy regulation, property law, and natural resource management. In several upcoming posts, I hope to explore […]
I’ve previously written about how Section 7805(b)(8) of the tax code may provide relief from King v. Burwell for persons who purchase policies on federal health care exchanges. Although I still believe that Section 7805(b)(8) provides an effective tool for the administration and enrollees, I’ve come to form some questions about its wisdom and possibly […]
Last month 28 Harvard law professors published an op-ed calling on Harvard University to rethink its university-wide sexual harassment policy. As the law professors explained, Harvard’s new sexual harassment policies and procedures “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title […]
It has been a very active couple of weeks for “Club Fed,” the group of scholars, investors, journalists and others who watch the Fed. In what may well be the Senate Democrats’ last Fed-related hurrah, we witnessed a fascinating hearing on the Fed’s supervisory authority, especially as delegated to the twelve quasi-private Federal Reserve Banks […]
Last week, I wrote that “there would be no legal basis for entering a stay” if the Supreme Court inKing v. Burwell invalidates the IRS’s rule governing the distribution of tax credits. I received some thoughtful pushback on that point, most notably from Will Baude and Andy Grewal. In light of their comments, I want […]
The Employment and Training Administration (“ETA”) of the U.S. Department of Labor (“Department”), proposed a controversial new rule for the Federal-State Unemployment Compensation Program. The purpose of the proposed regulation (§ 620.1) is to implement section 303(l)(A)(ii), Social Security Act (“SSA”), permitting the drug testing of Unemployment Compensation (“UC”) applicants for the use of controlled […]
This is the second time in the AdLaw Bridge Series where I’m highlighting excellent scholarship inspired by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank). As I mentioned in my prior post and as Paul Rose and I have explored elsewhere ( here and here), Dodd-Frank has raised the stakes for financial regulation […]
I’m delighted to join the other contributors to the Yale Journal on Regulation’s Notice and Comment Blog. My academic and professional time is more or less divided between the regulatory activities of the World Health Organization, particularly its activities under the 2005 International Health Regulations (IHR), and agencies under the U.S. Department of Health and […]
In a short forthcoming article, I explain how a government loss in King v. Burwell may create tax problems for persons who purchase policies on the federal exchanges during the current enrollment season. With a loss, enrollees will generally have to pay back the subsidies they received from the government. Also, starting in July 2015, […]
What would happen if the Supreme Court rules for the challengers in King? Not down the line, but immediately? I’ve heard some suggestions that the Court, keen to avoid the upheaval of insurance markets, might enter a stay or otherwise give the administration and Congress time to come up with a fix. That’s wishful thinking. […]