Regulatory Process

West Virginia v. EPA, Two Years Later: Updates on the Major Questions Doctrine

Experts will examine the major questions doctrine, its role in regulatory litigation, and its place in administrative law in light…

Courthouse Steps Decision: Loper Bright & Relentless

Chevron v. NRDC (1984) and subsequent precedents held that courts should defer to agency interpretations of ambiguous statutes. This “Chevron Deference”…

Explainer Episode 66 – Strategic Petroleum Reserve

Earlier this year, the U.S. Energy Information Administration reported that the nation’s Strategic Petroleum Reserve, or SPR, held approximately 358…

Courthouse Steps Oral Argument: Corner Post, Inc. v. Board of Governors of the Federal Reserve System

On February 20, 2024, the U.S. Supreme Court will hear oral argument in Corner Post, Inc. v. Board of Governors of…

Loper Bright and the Next Steps for Chevron Deference at the Supreme Court

This Term, the Supreme Court will hear Loper Bright Enterprises v. Raimondo—a case concerning judicial deference to agency interpretations of ambiguous…

Litigation Update: Loper Bright Enterprises v. Raimondo

For the past thirty years, the Magnuson-Stevens Act (MSA) has given the National Marine Fisheries Service (NMFS), an arm of…

Deep Dive Episode 277 – Welcome & Plenary Session: Regulatory Review Reset?

Eleventh Annual Executive Branch Review Conference — EBRXI Theme: Transparency, Accountability, and the Administrative State The White House recently released much-anticipated…

Virginia’s New Approach to Regulatory Modernization

Regulatory modernization has been a topic of nationwide interest in recent months.  With its recently revised Circular A-4, the federal…

A Discussion on NMFS’s Regulatory Authority: Whales, Speed Limits, and Legal Questions

The National Marine Fisheries Service (NMFS), an arm of the National Oceanic and Atmospheric Administration (NOAA), recently saw one of…

Explainer Episode 54 – Examining the Biden Administration’s Proposed Changes to Cost-Benefit Analysis

On April 6, 2023, the Biden Administration announced two new efforts to “modernize regulatory review” – the first through the…

Explainer Episode 53 – Biologics, Biosimilars, and the Two-fold U.S. Approval Framework’s Possible Impact on Prices

Biosimilars, a category of biologic (medicine derived from a living organism), require approval, at least in the U.S. by the…

Deep Dive Episode 264 – The SEC’s ESG Reporting Rule: Understanding the Debate over Climate-Risk Disclosure Requirements

In March 2022, the Securities and Exchange Commission proposed a new rule that would establish climate-risk disclosure requirements for public…

Deep Dive Episode 261 – Navigating the Axon Decision: Understanding its Implications for Federal Agencies and Administrative Law

In a highly anticipated decision, the Supreme Court held in Axon Enterprise, Inc. v. FTC (consolidated with Cochran v. SEC) that federal district courts have jurisdiction to resolve challenges to the structure and existence of federal agencies whose decisions are subject to review in a court of appeals.

Deep Dive Episode 251 – FTC: Cost/Benefit Analysis of Proposed Rules – A Deeper Dive

A panel of experts explore how a federal agency undertakes the cost-benefit analysis for proposed rules, comparing independent agencies to those subject to OIRA review, and provide practical tips for lawyers and economists working on agency rulemaking comments.

Deep Dive Episode 248 – Creatures of Statute III: Congress’ Responsibility to Answer the Major Questions

In the third in a lecture series on the administrative state, experts discuss the major questions doctrine and how Congress may respond to the Supreme Court’s decision in West Virginia v. EPA.

Deep Dive Episode 247 – Creatures of Statute II: Administrative Agencies and Policymaking

In part two of our series on the administrative state, regulatory experts focus on the role of the administrative agencies in policymaking.

Deep Dive Episode 246 – Creatures of Statute: Administrative Agencies in Practice

In this episode, regulatory experts share first-hand the function of administrative agencies, and their role in the federal government.

Deep Dive Episode 232 – The Implications of Jarkesy v. SEC for Administrative Tribunals

In this episode, experts discuss the Jarkesy v. SEC case, implications of the case on the future of administrative tribunals, and continuing litigation on the issue.

Deep Dive Episode 230 – Who Is Regulating the Regulators?

Susan Dudley and Paul Ray share their perspectives on the importance of this “obscure but powerful” office, and what the lack of a confirmed administrator means for the executive branch and its agencies.

Explainer Episode 37 – The Defense Production Act During War and Peacetime

J. Kennerly Davis, Jr. discusses the origins of the Defense Production Act and recent presidents’ invocation of the Act in pursuit of public policy objectives.

Deep Dive Episode 228 – Does the Federal Energy Regulatory Commission (FERC) Have Authority To Regulate the Climate?

J. Kennerly Davis, Jr. and Bernard McNamee discuss recent policy proposals and statements from the Federal Energy Regulatory Commission.

Deep Dive Episode 215 – Sundown for the SUNSET Rule?

An expert panel joined us to discuss HHS’s SUNSET rule, the effort to repeal it, and possible future HHS actions.

Explainer Episode 32 – The Vaccine Mandate Cases and the Future of Administrative Law

An expert panel breaks down the implications of the Supreme Court’s vaccine mandate rulings for the future of administrative law.

Deep Dive Episode 197 – Competition at a Crossroads: Will the Executive Order on Competition Advance Competition, or Restrict It?

A distinguished panel joined us to lay out the arguments behind and implications of Biden’s executive order on competition.

Deep Dive Episode 190 – The Implications of the Latest Congressional Review Act Disapprovals

Todd Gaziano and Professor Jonathan Adler discuss the CRA and the ramifications of its use on the three rules this year.

Deep Dive Episode 188 – Immigration Policymaking in the Biden Administration

An expert panel debates the appropriate regulatory process for immigration policymaking.

Deep Dive Episode 183 – The Path Forward on Agency Guidance

An expert panel discusses all things agency guidance – what it is, how and why it is issued, pros and cons of current guidance practices, and more.

Deep Dive Episode 181 – State of Emergency? Kentucky’s Legislature vs. Governor

Mitchel Denham and Oliver Dunford debate the implications of two cases that could shape the future of emergency government powers in Kentucky.

Deep Dive Episode 180 – Book Review: Administrative Law Theory and Fundamentals: An Integrated Approach

Professors Ilan Wurman and Richard Epstein discuss Professor Wurman’s new casebook on administrative law.

Explainer Episode 25 – President Biden’s Memo on “Modernizing Regulatory Review”

Ken Davis joined the podcast to discuss why and how President Biden’s memo on Modernizing Regulatory Review could significantly alter the regulatory review process.

Deep Dive Episode 161 – Congressional Review Act: First Branch Gets the Last Word

In this live podcast, experts review the overriding purposes of the CRA and do a deep dive into its technical elements.

Deep Dive Episode 152 – COVID-19 Regulatory Waivers and Suspensions: What Will the Biden Administration Do?

Will the Biden administration continue existing waivers and suspensions as is, or will it take a new tack on regulatory flexibility during the continuing pandemic?

Deep Dive Episode 151 – Public Input in Agency Rulemaking

An expert panel considers the legal and policy issues surrounding whether, and how, an agency should take account of public comments in rulemaking.

Deep Dive Episode 145 – The True Extent of Executive Power

The Federalist Society’s Georgetown Law Student Chapter and the Regulatory Transparency Project hosted John Yoo and Saikrishna Prakash for a discussion on the extent of executive power.

Deep Dive Episode 126 – Minutes to Midnight, or Teeing Up a Second Term?

To what extent can the current administration issue “midnight rules” affecting policy beyond January 20? And to what extent could the Congressional Review Act permanently erase those rules?

Deep Dive Episode 121 – Book Review: The Dubious Morality of Modern Administrative Law

In this live podcast, Prof. Adam J. White interviews Prof. Richard Epstein about his new book, and then Prof. Epstein fields caller questions on administrative law.

Deep Dive Episode 116 – Surviving COVID-19: The Small Business Perspective

In this episode, Karen Harned discusses policies that can help or harm the resilience of small business in the time of COVID-19.

Deep Dive Episode 113 – Executive Orders on Guidance: Implications and Next Steps

In this episode, experts discuss a 2019 executive order that imposed a series of restrictions and requirements on Federal agencies, and even included a requirement that agencies publish their guidance on the internet.

Deep Dive Episode 107 – COVID-19 in the Workplace: Mandated Paid Sick Leave

On March 18, the Senate passed and the President signed into law the “Families First Coronavirus Response Act.” Karen Harned and James Paretti will walk listeners through key provisions of this new law.

Deep Dive Episode 88 – The Whys and Hows of Commenting on Rules

In this episode, Susan Dudley, Karen Harned, and Brian Mannix give an overview of the process and value of the public commenting process for proposed regulations.

Deep Dive Episode 87 – The Dubious Morality of Modern Administrative Law

This podcast features audio from a recent event held at the University of California, Berkeley, featuring the insights of Richard Epstein and Daniel Farber.

Deep Dive Episode 80 – New Executive Orders Directing Agency Guidance

How significant are these orders? What impact will they have on regulatory policymaking? What has been the initial reaction to these new measures?

Deep Dive Episode 79 – An Update on Gundy v. United States

Gundy v. U.S. has enormous implications for how much power federal bureaucrats can be given by Congress. In this episode, panelists discuss this case and a potential future without such extensive power for federal agencies.

Deep Dive Episode 77 – Book Review: The Capitalism Paradox: How Cooperation Enables Free Market Competition

In this episode, Paul Rubin, the world’s leading expert on cooperative capitalism, discusses his new book, The Capitalism Paradox: How Cooperation Enables Free Market Competition.

Deep Dive Episode 66 – Americans with Disabilities Act Litigation Enters a New Frontier – Websites

Karen Harned will provide the background on this new trend in ADA litigation, the current state of the law, and highlight a case the Supreme Court is being asked to take this next term on the issue.

Deep Dive Episode 65 – Subdelegations of Rulemaking Power and the Appointments Clause

In this episode, experts discuss whether the constitution permits inferior officers in federal agencies to issue binding rules.

Deep Dive Episode 62 – An Update on Kisor v. Wilkie

In this episode, Karen Harned and Stephen Vaden discuss the Supreme Court’s recent decision in Kisor v. Wilkie, a case with important implications for judicial deference to agency interpretation of rules.

Deep Dive Episode 61 – Gundy v. United States: Revisiting the Nondelegation Doctrine, or Not?

How much discretion can Congress delegate to federal agencies and their officers while still retaining the separation of powers? Mark Chenoweth discusses the Supreme Court’s decision in Gundy v. United States and its implications going forward for the nondelegation doctrine.

Deep Dive Episode 55 – Regulatory Reform Report Card: Agency General Counsel Perspective

In this episode, General Counsels from a number of federal agencies take stock of the current administration’s regulatory reform agenda two years on.

Deep Dive Episode 40 – Kisor v. Wilkie

In this Fourth Branch podcast, Stephen Vaden moderates a discussion between Karen Harned and Andrew Varcoe on Kisor v. Wilkie, a case which has broad and significant implications for issues surrounding judicial deference to agency interpretation of regulations.

Deep Dive Episode 25 – The Commenting Power: Agency Accountability through Public Participation

Did you know that you have a say in the U.S. government’s regulatory process? Donald Kochan (Chapman University Fowler School of Law) and Maleka Momand (Argive) discuss the notice and comment rulemaking process in this episode of Fourth Branch.

Deep Dive Episode 24 – Regulatory Scorecard: A Conversation with Administrator Neomi Rao

In this episode of Fourth Branch, Administrator Neomi Rao (Office of Information and Regulatory Affairs) shares her thoughts on federal regulatory changes over the previous year.

Deep Dive Episode 21 – Shining a Light on Regulatory Dark Matter: Regulating Through Guidance

Stephen Cox (Department of Justice) and Paul R. Noe (American Forest & Paper Association) discuss concerns regarding the development and use of guidance documents by agencies and how these concerns are being addressed by the Department of Justice.

Deep Dive Episode 20 – The 2017 Mercatus Report: The Implications of Regulating Over the Long-Term

Patrick McLaughlin (Mercatus Center) discuss his study on regulation’s effect on the decision-making processes of individual businesses and, as a result, on economic growth.

Deep Dive Episode 9 – Bureaucracy in America

Joseph Postell (University of Colorado-Colorado Springs) discusses the administrative state, how it has changed over time, and how these changes have influenced our constitutional system.

Deep Dive Episode 6 – Laws, Regulations, and “Regulatory Dark Matter”

Wayne Crews (Competitive Enterprise Institute) explores “regulatory dark matter”: the thousands of executive branch and federal agency proclamations and issuances that carry practical (if not always technically legally) binding regulatory effect.

AI Poses a Serious Threat to the Legal Profession. It Also Presents an Extraordinary Opportunity.

The rapid emergence of high-profile applications for Artificial Intelligence—including advanced search engines, recommendation systems, and generative tools—has given rise to a wide-ranging discussion and often spirited debate about what might result from the accelerating deployment of this revolutionary technology.

ADA Testers Can Keep Testing . . . For Now

On December 5, the Supreme Court issued a unanimous opinion by Justice Amy Coney Barrett in Acheson Hotels LLC v. Laufer dismissing the case as moot. Acheson concerned whether Article III of the Constitution provides “tester” plaintiffs standing to sue for alleged Americans with Disabilities Act violations, even when such plaintiffs have no intention of patronizing the business they are suing.

Testing the Testers: The Supreme Court is Set to Consider the Standing of Private Citizens Who Sue to Enforce the Americans with Disabilities Act

Karen Harned

On October 4, the Supreme Court will hear arguments in Acheson Hotels LLC v. Laufer. The case explores whether so-called “tester” plaintiffs under the Americans with Disabilities Act have standing to sue for alleged ADA violations under Article III of the Constitution, even when such plaintiffs have no intention of patronizing the business they are suing.

Is It Lawful to Use Regulatory Impact Analysis to Achieve Equity?

J. Kennerly Davis, Jr.

Circular A-4, issued by the Office of Management and Budget (OMB), provides detailed guidance to federal agencies regarding the methodological attributes of sound regulatory impact analysis. The Biden administration has proposed modifications to Circular A-4 that were recently peer reviewed in preparation for the finalization and public release of a modified Circular A-4, perhaps by the end of this calendar year.

EEOC Proposes Expansive Pregnant Workers Fairness Act Regulations

Rachel Morrison

On August 7, 2023, the Equal Employment Opportunity Commission (EEOC) issued proposed regulations implementing the Pregnant Workers Fairness Act (PWFA). The Commission is accepting public comment on its proposal until Tuesday, October 10.

HHS Proposes Special HIPAA Privacy Rules for “Reproductive Health Care” Information

Rachel Morrison

In accord with the Biden administration’s pro-abortion agenda, the U.S. Department of Health and Human Services issued a notice of proposed rulemaking (NPRM) on April 17, 2023, titled “HIPAA Privacy Rule To Support Reproductive Health Care Privacy.” The NPRM would modify privacy standards under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) for information related to “reproductive health care.”

ED Proposes Title IX Athletics Rule Requiring Participation Based on Gender Identity

Rachel Morrison

On April 13, 2023, the Department of Education (ED) issued a notice of proposed rulemaking (NPRM) titled “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams.” This Athletics NPRM would establish a new regulatory standard under Title IX that would govern sex-related criteria as it relates to gender identity for participation on sex-specific athletics teams at federally funded educational institutions. The 32-day public comment period closes on Monday, May 15.

A Falling Tide Reveals A Lot Of Things

J. Kennerly Davis, Jr.

If we can realign our political debates and policy analyses to focus on the flaws and failures of the progressive model of regulation, we will be much better prepared when the tide goes out the next time.

Nine Agencies Propose Regulations for Partnerships with Faith-Based and Neighborhood Organizations

On January 13, 2023, nine agencies issued a notice of proposed rulemaking (NPRM) titled “Partnerships With Faith-Based and Neighborhood Organizations” to “clarify protections for beneficiaries and potential beneficiaries receiving federally funded social services and the rights and obligations of organizations providing such services.”

Education Department Proposes Rescinding Religious Student Group Protections and Requests Info on Campus Free Speech Regulations

Rachel Morrison

On February 22, 2023, the Department of Education (ED) published in the Federal Register a notice of proposed rulemaking (NPRM) and a request for information (RFI) relating to First Amendment religious exercise and free speech regulations for institutions of higher education.

Supreme Court to Hear Two Challenges to President Biden’s Student Loan Forgiveness Program

Karen Harned

In December, the Supreme Court granted certiorari in two cases challenging the student loan forgiveness program that President Biden announced in August of last year. Biden v. Nebraska was brought by six states: Arkansas, Iowa, Kansas, Missouri, Nebraska, and South Carolina. Department of Education v. Brown was brought by two individuals with student loans.

“Those who fail to learn from history are condemned to repeat it.”

Susan Dudley

In a Wall Street Journal op-ed, Howard Beales and Tim Muris review the results of the Federal Trade Commission’s previous efforts (in the 1970s) to reshape the economy through rushed rulemaking; it is a disastrous history that the FTC’s new majority seems determined to repeat.

Go Ahead, You Do It For Us

Wayne A. Abernathy

Rule of Law or Rule of Experts?  Almost exactly 9 years ago, I spoke to this question, posed by the erosion of the Constitution’s separation of powers.  At a legal symposium in Philadelphia, I raised the problem of concentration of say-so in federal financial regulators.

An Empty Attack on the Nondelegation Doctrine

Peter Wallison

Peter Wallison argues that the Constitution’s separation of powers provides ample justification for a revival of the nondelegation doctrine.

HHS Proposal Adds Teeth to Requirements for Retrospective Regulatory Review

J. Kennerly Davis

There is bipartisan agreement that the cost effectiveness of regulation could be greatly improved if regulatory agencies engaged in systematic retrospective analysis of the benefits and costs of the rules and regulations that they have previously enacted. Such analysis could identify for amendment or rescission specific regulatory provisions that have proven to be unnecessarily costly, counterproductive, ineffective, or simply outmoded.

It’s Time to Remodel Our Policy Making Processes

J. Kennerly Davis

It is time, past time, for a thorough reassessment of the outsized role that modelers and their models have been playing in the formulation of public policy, the drafting of legislation, and the development of regulations.

Yes, Judge, We Do Think About Reviewability

Brian Mannix

Parties who disagree with an agency’s action have recourse to the courts; but, if the agency is doing its job properly, it should not be vulnerable for failures of administrative procedure.

Reigning in Regulatory Dark Matter

J. Kennerly Davis

Curbing administrative overreach to restore the rule of law is an ongoing project without an end in sight. But it’s clear that this most worthy project got a big boost on October 9.

Man Bites Dog – Idaho Repeals its Regulatory Code

J. Kennerly Davis

Idaho has long been widely known for the natural wonders that grace its landscape: the rugged wilderness, the snow-capped peaks, the sparkling waters and, of course, the potatoes.

The Many Issues Raised by Senator Warren’s Wealth Tax

J. Kennerly Davis, Jr.

A strong argument can be made that Senator Warren’s proposed wealth tax would be unconstitutional unless apportioned.

Government Shutdown and Deregulation

Susan Dudley

According to my George Washington University Regulatory Studies Center colleague, Bridget Dooling, a lengthy federal shutdown threatens to derail President Trump’s deregulatory priorities. Not only are covered agencies unable to make progress on their deregulatory initiatives, but the portals for public notice and comment and the office that must review all regulations before they can be issued are caught up in the furlough.

Regulatory Year in Review

Eileen J. O'Connor

Within a week of his inauguration, President Trump signed an Executive Order instructing his Administration to take action to keep his campaign promise to reduce government regulation.  The EO requires federal agencies to eliminate two regulations for every one they issue, and to hold annual incremental cost of regulations to zero.  How is his Administration delivering on those promises?

On the Future of the Chevron Doctrine

J. Kennerly Davis

Joel Nolette is a litigation attorney at Mintz Levin in Boston, and an active member of the Administrative Law & Regulation Practice Group, currently serving on its Executive Committee.

Management’s Duty to Restore The Rule of Law

J. Kennerly Davis

Springtime is the season when most American corporations hold their annual meeting of shareholders.  In the course of a typical meeting, board directors will be elected and independent auditors will be appointed.  Management will report on operating results and earnings for the fiscal year recently ended, and will outline their strategic business plans for the future.  In their presentations, management will make the case that they are fulfilling the fundamental fiduciary duty they have to promote the best interests of the corporation and maximize shareholder value.

Trends in Government Priorities, 1960 – 2019

Eileen J. O'Connor

A new report – by Susan Dudley of the George Washington University Regulatory Studies Center and Melinda Warren of the Weidenbaum Center on the Economy, Government, and Public Policy at Washington University in St. Louis – shows that President Trump plans to increase regulatory activity for border security and immigration in 2019, and to dramatically reduce the budgets of agencies involved in environmental regulation.

Celebrating Law Day

J. Kennerly Davis, Jr.

Today marks the 60th anniversary of President Eisenhower’s proclamation establishing Law Day. Eisenhower dedicated the day to “distinguish our governmental system from the type of government that rules by might alone.”

Will OIRA Extend its Review to Independent Agencies?

Susan Dudley and Eileen J. O'Connor

At the Federalist Society’s Sixth Annual Executive Branch Review Conference, Office of information and Regulatory Affairs (“OIRA”) Administrator Neomi Rao spoke about the new agreement she had hammered out with the Treasury Department to bring OIRA’s review of IRS regulations more in line with its review of other agencies’ regulations. She also strongly hinted that independent regulatory agencies may be next, observing that “OIRA review can promote a more constitutional and coherent regulatory policy,” and that the “good regulatory practices promoted by OIRA can apply to all agencies that regulate the public.” In her latest Forbes column, Susan Dudley agrees.  She argues that OIRA review encourages greater transparency, analytical rigor, and accountability in regulations, and urges the Administration to extend long-standing executive orders requiring OIRA review to all agencies that issue regulations binding on the public.

Public Participation and the Power of Persuasion

Brian F. Mannix

I care about regulatory policy, and over the years have filed comments on the record in dozens of agency rulemakings. Most of these comments have been ignored, but many have been influential – a few spectacularly so. I cannot say the same about the votes I have cast in federal elections.

Reading Past The Headline In OMB’s Report To Congress

Eileen J. O'Connor

As required by the Regulatory Right to Know Act, enacted in 2000, the Office of Management and Budget submits an annual report to Congress outlining the costs and benefits of regulations issued the previous year.  It appears, from the latest report, issued in draft form last Friday, that the benefits of regulations in effect the past ten years are three to eight times their costs.

Attorney General Directs DOJ to Stop Circumventing APA

Susan Dudley

In remarks to the Federalist Society’s National Lawyers Convention on Friday, Attorney General Jeff Sessions announced new Department of Justice policy on issuing guidance “or similar instruments of future effect by other names, such as letters to regulated entities.”

Using Tax Reform to Reveal the Hidden Cost of the Administrative State

J. Kennerly Davis, Jr.

Regulatory compliance costs impose an enormous burden on the American economy, a hidden tax that we all must pay in higher prices and smaller paychecks.

Can Regulations Come with Unintended Costs?

J. Kennerly Davis, Jr.

Can regulations come with unintended costs? They certainly can, and often do.