In any incoming Administration there are two unique appointments which could have a significant impact on the ultimate success or failure of an Administration, the Director of OMB and the leader of one of its component offices—the Office of Information and Regulatory Affairs, OIRA. The former helps develop and enforce Presidential policies using the annual […]
The press and regulated entities have been asking many questions about the status of regulations issued under the Obama Administration, and whether and how they might be revised or repealed when the Trump Administration takes office. These questions arise in four major areas — Executive Orders, Midnight Rules, application of the Congressional Review Act, and […]
On February 8, 2016, the ABA adopted recommendations to revamp the APA’s informal rulemaking provision, 5 U.S.C. § 553. In its Report to the President-Elect, the ABA Section on Administrative and Regulatory Law has urged the Trump administration to endorse those revisions (pages 10-11). The provisions have been summarized previously in this blog here. Section […]
This blog post is one in a series of posts discussing the 2016 Report to the President-Elect that American Bar Association’s Section of Administrative Law and Regulatory Practice issued shortly before the presidential election. In this post, I will discuss the recommendation that the President ensures that all agency guidance documents are made available online […]
In the ABA Administrative Law Section’s Report to the President-Elect, one finds a rather familiar recommendation: that the agencies undertake “careful, in-depth retrospective review of existing rules.” I call this a “familiar” recommendation, because President-elect Trump’s predecessor called for such a retrospective review in his own Administration. In early 2011, after the mid-term elections, President Obama […]
Proposals for regulatory reform featured prominently in the run-up to the 2016 election and will likely continue to receive very close attention in the new administration. As Emily Bremer highlighted in her introduction to this symposium, the American Bar Association’s Section of Administrative Law and Regulatory Practice prepared a report for both presidential candidates in […]
A Trump administration is unlikely to be supportive of three of the four recommendations relating to adjudication in the Report to the President-Elect by the ABA Section on Administrative Law and Regulatory Practice. Considering these recommendations (though not in the order they were presented in the ABA’s letter): 1) The Ad Law Section urged the […]
I am also pleased to contribute to this symposium on the Section of Administrative Law and Regulatory Practice’s 2016 Report to the President-Elect. My assignment? Regulatory cooperation between the United States and other countries. I strongly support such cooperation — well, at least most of the time. To begin, this is what the Report has […]
Among the ABA AdLaw Section’s recommendations in its bi-partisan Report to the President-Elect sent to both candidates before the election was this one concerning OIRA’s administration of Executive Order 12,866: Third, we urge you to ensure appropriate transparency in White House oversight of agency rulemaking through OIRA. From their beginning, the Executive orders creating a […]
Over the next week or so, we will be hosting an online symposium on the 2016 Report to the President-Elect on Improving the Administrative Process, which was released by the ABA Section on Administrative Law and Regulatory Practice ahead of this year’s presidential election. The symposium will feature posts from a wide diversity of administrative […]
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 thinking about the future of Auer deference, I begin with a critical supposition, that stare decisis will prevail and the Court will not overturn Auer, at least not based on separation of powers principles.* Retaining Auer, however, does not mean that its doctrine will remain static. Drawing especially but not exclusively from Christopher v. […]
I planned to post solely about how judicial review would operate without Auer deference. I recently ruminated in a forthcoming Missouri Law Review symposium paper about a future without Chevron, and I think post-Auer and post-Chevron futures offer interestingly different implications. But along the way I found myself thinking about the origins of Auer deference. […]
Our symposium on Seminole Rock deference has now come to an end. I will take a few moments, however, to thank all of the participants. By my count, 30 different contributors posted as part of this symposium. We are fortunate that so many folks, with so many different perspectives, were willing to take the time […]
“[I]t is emphatically the province and duty of the Judicial Department to say what the law is.” These simple, straightforward words constitute Chief Justice John Marshall’s foundational definition in Marbury v. Madison of “the judicial Power” that the Constitution vests in the federal courts. Repeated in countless court decisions, law review articles, and civics textbooks, […]