Enforcement & Agency Coercion
Topics
Beyond official rules and regulations, federal agencies sometimes exert influence through unofficial administrative tools. Wielded without the ordinary checks and balances of official actions that lawmakers put in place, these powers can be used to pressure individuals and companies to surrender their rights without due process. What are the real-world examples of agencies using coercive power to affect companies, employees, and consumers and how can these practices be avoided in the future?
Improper Third-Party Payments in U.S. Government Litigation Settlements
In this paper, the authors lay out how the United States government negotiated settlements in which settling defendants were forced to pay “donations” to third parties not involved in the cases. The authors go on to argue that this practice – halted in 2017 – was unconstitutional and must remain permanently proscribed.
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Regulating in the Shadows: How Agencies Achieve Indirectly that Which they have No Authority to Achieve Directly
When is it appropriate for a government agency to use its powers and force citizens to give up legal rights in order to achieve the agency’s goals? When does this power become overly coercive? The authors of this paper delve into these important questions.
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Deep Dive Episode 226 – Due Process Protections in Agency Enforcement Actions
Steven Bradbury, Sheng Li, and Beth Williams provided an update on Polyweave Packaging v. Buttigieg and discussed the case’s implications for administrative rulemaking and due process.
Listen to this podcastDeep Dive Episode 222 – The Return of Supplemental Environmental Projects
Three executive branch veterans with a range of views on the issue joined us for a virtual discussion on the return of SEPs.
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Deep Dive Episode 200 – Corporate Social Responsibility, Investment Strategy, and Liability Risks
A distinguished panel joins us to discuss a new paper that examines the legal implications of the rise of “ESG” investing.
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Deep Dive Episode 196 – Brace Yourself: Discussing The ATF’s Rulemaking On Forearm Stabilizing
An expert panel debates a proposed rule that could subject almost all firearms with forearm stabilizing braces to the National Firearms Act of 1934.
Listen to this podcastDeep Dive Episode 172 – Third-Party Payments in Government Litigation Settlements
Experts debate whether third-party payments in government litigation settlements will – and should – be utilized by the new administration.
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Deep Dive Episode 129 – Environmental Citizen Suits and SEPs: Do Constitutional and Nondelegation Concerns Outweigh Environmental Benefits?
Are Supplemental Environmental Projects–citizen suits filed alongside the government’s environmental enforcement actions–an unconstitutional infringement on a core executive function?
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Deep Dive Episode 101 – Litigation Update: Neora v. FTC
Neora Co-CEO Deborah Heisz and lead litigation counsel Ed Burbach of Foley & Lardner join us to describe their last four years of interactions with the FTC and the ultimate “fencing in” proposal that lead them to file suit.
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Explainer Episode 4 – Civil Rights and Vanity Plates
A USC professor was barred by the California DMV from putting a soccer slogan on his vanity plate; were his free speech rights violated?
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Deep Dive Episode 59 – Cedar Point Nursery v. Shiroma
A recent Ninth Circuit decision held that a California regulation allowing labor organizers to spend time on an employer’s property for the purpose of soliciting union membership did not count as a ‘physical taking’ under the 5th Amendment. Wen Fa and Bethany Berger discuss the implications of this decision.
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Deep Dive Episode 54 – Department of Interior Considers Rulemaking on the Right to Use Eagle Feathers in Religious Exercise
It is currently a federal crime, under the Bald and Golden Eagle Protection Act, for many Native Americans to possess eagle feathers for religious use. In the 53rd episode of the Fourth Branch podcast series, Joe Davis addressed the proposed rulemaking and its relationship to evolving First Amendment jurisprudence.
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Deep Dive Episode 23 – En Banc D.C. Circuit Upholds CFPB Constitutionality
Amb. C. Boyden Gray and Adam Gustafson (Boyden Gray & Associates) discuss the recent en banc decision in PHH v. CFPB, which considers the constitutionality of the CFPB, and whether the case is likely to reach the Supreme Court of the United States.
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Deep Dive Episode 11 – Heimlich Maneuver on Operation Choke Point?
Listen to Pete Patterson (Cooper & Kirk) discuss Operation Choke Point, the recent Department of Justice letter denouncing its participation in this initiative, and litigation against federal agencies who have participated in it.
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Deep Dive Episode 8 – Cardiac Arrest: A Cautionary Tale
Listen to Howard Root’s story of going from the CEO of Vascular Solutions, Inc. to defending himself and his company in court.
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Deep Dive Episode 3 – SEC Increased Use of Administrative Proceedings and “The $2,200 Man”
Michael Kelly (Hogan Lovells) and Eric Wanger (Wanger Investment Management) discuss the SEC’s use of administrative proceedings in this episode of Fourth Branch.
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Official Trailer: The Regulation and Red Tape Series
In this new video series from the Regulatory Transparency Project, leading legal experts will debate some of the most controversial regulatory issues in America today. Moderated by the Hon. Paul J. Ray, “Regulation and Red Tape” will tell true stories of how federal regulatory actions impact the lives of ordinary Americans and the economy they rely on. In watching this series, you will have the opportunity to learn more about how the regulatory process functions, consider how and when regulatory action is necessary, and evaluate the trade-offs involved when the regulatory state acts.
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Due Process Protections in Agency Enforcement Actions
Steven Bradbury, Sheng Li, and Beth Williams provided an update on Polyweave Packaging v. Buttigieg and discussed the case’s implications for administrative rulemaking and due process.
Watch this video
The Return of Supplemental Environmental Projects
Three executive branch veterans with a range of views on the issue joined us for a virtual discussion on the return of SEPs.
Watch this video
Should Regulators Mandate ESG Practices and Disclosures?
Trent McCotter examines Environmental, Social, and Governance standards and how they are, and should be, utilized by regulators.
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Corporate Social Responsibility, Investment Strategy, and Liability Risks
A distinguished panel joins us to discuss a new paper that examines the legal implications of the rise of “ESG” investing.
Watch this video
Brace Yourself: Discussing The ATF’s Rulemaking On Forearm Stabilizing Braces
An expert panel debates a proposed rule that could subject almost all firearms with forearm stabilizing braces to the National Firearms Act of 1934.
Watch this video
Third-Party Payments in Government Litigation Settlements
Experts debate whether third-party payments in government litigation settlements will – and should – be utilized by the new administration
Watch this video
Are Fuel Economy Standards Useful in Lowering Carbon Pollution?
Are fuel economy regulations the best tool to reduce pollution? How do they affect consumer behavior, and do they have hidden costs?
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How Does the FDA Regulate Hand Sanitizer?
Due to the COVID-19 pandemic, hand sanitizer has been in high demand. The FDA has stringent regulations about the ingredients for hand sanitizer. This guidance was relaxed somewhat to allow more production from a variety of alcohol industries, such as fuel alcohol manufacturers. After these industries invested time and money preparing to produce hand sanitizer, the FDA revoked the initial guidance and dictated that all hand sanitizer must comply with the usual standards. Are the actions of the FDA justified out of a concern for safety, or should some regulations be re-evaluated in times of emergency?
T. Elliot Gaiser is an Associate at Boyden Gray & Associates PLLC.
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SCOTUS Strikes Down Structure of CFPB’s Director Position
John Shu
Today, in Seila Law, LLC v. Consumer Financial Protection Bureau, the Supreme Court struck down the CFPB’s leadership structure of a single director with a five-year term, removable only for inefficiency, neglect, or malfeasance, because it violates the separation of powers.
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It Shouldn’t Be Illegal to Wear a T-shirt
Wen Fa
It shouldn’t be illegal to wear a t-shirt. Yet several states, including California, Colorado, and Tennessee, have established buffer zones in which political expression is forbidden when it matters the most. On Election Day, voters in these states are forbidden from wearing t-shirts or buttons that ostensibly express political messages. In some states, Americans are even prohibited from displaying political yard signs on their own property if they happen to reside too close to a school or a church that’s being used as a polling place.
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Speech Police at the DMV: Regulation and Arbitrary Rule
Wen Fa
Vague laws invite arbitrary power. Laws that require regulators to censor speech they find offensive, for example, give them free rein to make decisions that are arbitrary, biased, and unjust.
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