The “midnight rules” phenomenon is well known and well-studied. Every presidential administration issues a disproportionately large number of rules in its final year. Midnight rules issued by the Trump administration present unusual challenges for the Biden administration, however. Virtually all of the hundreds of midnight rules issued by the Trump administration announce and implement policies […]
Although scholars may not be able to see each other at conferences or other events for the foreseeable future, they can still maintain some virtual connection. The Association of American Law Schools (AALS) Section on Administrative Law continues its initiative: “Meet a Member.” The section will introduce our members from time to time, and it […]
The days of the Senate filibuster are likely numbered. Recently, President Obama called for eliminating the filibuster as a relic of Jim Crow. Likewise, President Trump has repeatedly called for eliminating the filibuster, and Joe Biden has indicated openness to eliminating the filibuster. If the Senate were to eliminate the filibuster, this is not the […]
We’ve covered the issue of Congressional Review Act (CRA) disapprovals quite closely here on the blog, so readers might recall that Congress can use the CRA to disapprove federal agency rules using fast-track procedures during a special window of time following the rule’s issuance. What we’ve surely never talked about on the blog is how […]
Last week more than twenty Republican Senators sent a letter to President Trump, encouraging the Administration to extend centralized review done by the Office of Information and Regulatory Affairs (OIRA) to significant regulatory actions by independent agencies. Here’s the text of the letter (footnotes omitted): We write to thank you for your leadership in reducing […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to last month’s cases. The Supreme Court’s Evolving Doctrine on “Jurisdictional Rules” Has Huge Implications for the APA Given that Article III courts have a duty to police their own […]
It is both humbling and daunting to have your book reviewed by so many eminent scholars. I am deeply grateful to Chris Walker and the JREG crew for hosting this symposium, and especially to Bridget Dooling for organizing it. When I first began writing Bending the Rules: Procedural Politicking in the Bureaucracy, my hope was […]
I’m on vacation so this will be a quick post. Thankfully, the D.C. Circuit cooperated — we have just two cases. My “con law” friends spend a lot of time thinking about dead hands. Normatively, why is it, they wonder, that decisions made by those who have long since died continue to have legal effect, […]
Over the last few weeks, Notice and Comment has hosted a symposium with contributions from fourteen scholars on the binding power of federal agency guidance, using as a focal point my article “Federal Agency Guidance and the Power to Bind,” recently published in the Yale Journal on Regulation. The contributions, many of which draw from […]
The year 2019 may prove to be a landmark one for the question of the proper role of agency guidance documents (or “non-legislative rules”). Within the next month or two, the Supreme Court will reach a decision on Kisor v. Wilkie where the question of judicial deference to agency’s interpretation of their regulations is at […]
Last week, the acting director of the Office of Management and Budget (OMB) issued a memorandum to all agencies regarding compliance with the Congressional Review Act (CRA). This memo supersedes one issued in 1999 and pulls independent regulatory agencies – specifically designed by Congress to be less prone to political interference than executive agencies – into a […]
The Office of Management and Budget issued a memo on Thursday describing its new approach to its implementation of the Congressional Review Act (CRA). Under the CRA, the Office of Information and Regulatory Affairs (OIRA) is required to determine whether agency “rules” are “major.” In this memo, OMB calls for information about economic impacts to inform its […]
The House of Representatives on Wednesday passed the Save the Internet Act of 2019. In broad strokes, the bill would restore the Obama-era FCC’s order that classified Internet service providers as “telecommunications carriers” subject to regulation under Title II of the Communications Act and imposed a set of net neutrality rules on ISPs pursuant to […]
Earlier this month the U.S. Department of Labor (DOL) issued a proposed rule that may turn out to be the first opportunity to test the Congressional Review Act (CRA) post-disapproval restriction on rulemaking. The CRA authorizes Congress to use an expedited process to nullify recent rules. It has been used successfully 17 times, 16 of which […]
An agency cannot issue, amend, or rescind a legislative rule without first conducting a notice and comment proceeding (N&C) unless it can find an applicable exemption from the N&C procedure. The N&C process has become so lengthy and resource-intensive that agencies are increasingly desperate to find an applicable exception. Moreover, Congress sometimes shares agencies’ frustration […]