Regulation

According to Stephen Bannon, the Trump Administration will seek “the deconstruction of the administrative state.” If that is true, a legal battle of epic proportions will follow.

Information Wars Part III: Climate Changing the Facts

4/18/17  //  Commentary

The Trump administration is engaging in climate denial by concealing information relevant to environmental policy.

Leah Litman

U.C. Irvine School of Law

ADA Education and Reform Act

4/18/17  //  Quick Reactions

The ADA Education and Reform Act would undermine ADA compliance and make people with disabilities the involuntary unpaid consultants of the businesses that discriminate against them

Eve Hill

Brown Goldstein & Levy

"School Choice" May Leave Students with Disabilities No Choice

4/17/17  //  Commentary

Privatization and decentralization of public education will return the U.S. to the days when students with disabilities were out-of-sight and out-of-mind, without meaningful education. Public schools could become the new institutions.

Eve Hill

Brown Goldstein & Levy

Alternative Facts & History, and Alarming Implications, in DOJ's CFPB Brief.

4/17/17  //  In-Depth Analysis

DOJ's brief attacking the CFPB is riddled with alternative facts and offers a fictional history of the separation of powers. It may inflict lasting damage on DOJ's credibility. And the implications of DOJ's position for the SEC, Federal Reserve, and U.S. Postal Service, among other federal agencies, are alarming.

Neil J. Kinkopf

George State University College of Law

The Blind Side In Trump’s War On The Administrative State

4/17/17  //  Commentary

Neomi Rao’s nomination to serve as Administrator of the Office of Information and Regulatory Affairs (OIRA) is part of Trump and Bannon’s war on the administrative state.

Leah Litman

U.C. Irvine School of Law

Ian Samuel

Harvard Law School

Updates | The Week of April 10, 2017

4/16/17  //  Daily Update

President Trump appointed Neomi Rao, a law professor at George Mason University, as Administrator of the Office of Information and Regulatory Affairs. The administration also sought to dismiss a lawsuit challenging its "one in, two out" executive order regarding regulation.

Updates | The Week of April 10, 2017

4/16/17  //  Daily Update

The Trump administration continues to consider pulling out of the Paris climate change agreement. Budget cuts and a deregulatory agenda threaten long-running EPA programs.

Updates | The Week of April 10, 2017

4/16/17  //  Daily Update

News regarding the Consumer Financial Protection Bureau dominated the week of April 10th.

DeVos Gives Accountability the Boot

4/14/17  //  Commentary

Education Secretary Betsy DeDos has jettisoned memos that hold student loan services accountable for past performance. That hurts everyone except her buddies in the loan servicing industry.

Danielle D'Onfro

Washington University Law School

Updates | The Week of April 3, 2017

4/9/17  //  Daily Update

President Trump is still slowly nominating cabinet members. He is revealing his attitude toward the administrative state through proposed budget cuts and use of the Congressional Repeal Act.

Updates | The Week of April 3, 2017

4/9/17  //  Daily Update

A case challenging the constitutionality of the Consumer Financial Protection Bureau's structure continues in the DC Circuit.

Updates | The Week of April 3, 2017

4/9/17  //  Daily Update

Republicans are still figuring out what to do in the face of their healthcare defeat.

The CBO-CBA Analogy, or What Wonks Could Learn from Each Other

3/17/17  //  In-Depth Analysis

Republican criticism of CBO's report on the American Health Care Act echoes long-standing criticism of cost-benefit analysis at OIRA. There are lessons to be learned here.

Jennifer Nou

University of Chicago Law School

NFIB v. Sebelius As Anti-Canon (a.k.a. This Administration’s Galling Constitutional Hypocrisy)

3/23/17  //  In-Depth Analysis

The Trump administration is engaged in stunning constitutional hypocrisy. Measured against conservatives' professed commitment to "liberty" and "freedom," there is no serious distinction to be drawn between Obamacare and Trump's American Health Care Act.

Leah Litman

U.C. Irvine School of Law

Why California Stands in the Way of Trump's EPA

3/24/17  //  Commentary

President Trump recently announced that EPA will reconsider fuel efficiency standards. But so long as California remains free to set its own, more protective standard, Trump's decision may not matter very much. And the law is squarely on California's side.

Take Care

Uncertainty Has Consequences: Health Care Reform Edition

3/22/17  //  Commentary

Uncertainty created by presidential action can be destructive. That is painfully clear in the healthcare field, where President Trump's vague, confusing, and ever-changing policies are already causing harm.

Rachel Sachs

Washington University Law School

American Cognitive Dissonance

3/17/17  //  Commentary

Perhaps some good may come from Trump’s ham-fisted efforts to drain the swamp: a revitalization of the bureaucracy, which renders important services to the nation.

Jon D. Michaels

UCLA School of Law

It’s Time To Pay Attention To Whom Trump Is Putting in Charge of Federal Agencies—And How He’s Doing It

3/17/17  //  Commentary

President Trump isn't nominating people to many positions requiring Senate confirmation. Instead, he's relying on employees who haven't been vetted through the advice & consent process. That's not okay.

Brianne J. Gorod

Constitutional Accountability Center

In Consumer Bureau Showdown, it’s Trump’s DOJ versus . . . Trump’s DOJ

4/12/17  //  Commentary

There's been a stunning development in the pending D.C. Circuit case about the CFPB's constitutionality: DOJ has recently filed a brief in another separation-of-powers case that directly and irrefutably contradicts the main argument in its brief attacking the CFPB.

Deepak Gupta

Gupta Wessler PLLC

Jonathan Taylor

Gupta Wessler PLLC

Jared Kushner's New SWAT Team More Like Neighborhood Watch

3/27/17  //  Quick Reactions

Trump's son-in-law will lead a new office to "overhaul the federal bureaucracy." But Kushner can't wield real power without crashing into federal anti-nepotism rules. So our new government efficiency czar can't make big decisions himself. Oh, the irony ...

Nikolas Bowie

Harvard Law School

Is The GOP ACA Repealer Unconstitutional on Federalism Grounds?

3/24/17  //  Commentary

Abbe Gluck explains that, ironically, the GOP proposal to repeal the Affordable Care Act in the name of returning authority over health care to the states has potentially serious constitutional issues on federalism grounds.

Take Care

The Injustice of Trump's Climate Order

3/29/17  //  Commentary

As a result of Trump's tragic climate order, people will suffer, and some will die. Not only years from now, but also in the short term.

Eli Savit

University of Michigan Law School

Uncertainty (Still) Has Consequences – and Trump Knows It

4/13/17  //  Quick Reactions

Yesterday, in an interview with the Wall Street Journal, President Trump admitted that he's toying with the idea of blowing up the Affordable Care Act in order to extract concessions from Democrats.

Nick Bagley

University of Michigan Law School

Rachel Sachs

Washington University Law School

Pipelines, Presidents, and Policing Plenary Power

3/30/17  //  Commentary

The Trump Administration's recent reversal on the Dakota Access Pipeline can (and must) be carefully examined in court.

Seth Davis

U.C. Irvine School of Law

What Happens Next for the ACA?

3/28/17  //  Commentary

President Trump has said that “the best thing we can do politically speaking is let Obamacare explode,” and there’s a lot he can do to make that explosion a reality. Here is what you need to know about what might come next.

Rachel Sachs

Washington University Law School

Nick Bagley

University of Michigan Law School

When Due Process Reliance Defenses May Bar Enforcement

3/24/17  //  Commentary

In limited but vital ways, those who relied on Obama-era immigration and marijuana non-enforcement policies should be protected against sudden shifts in federal policy under President Trump.

Zachary Price

U.C. Hastings College of the Law

We Need a National Debate on a Federal Tax on Wealth

4/14/17  //  Commentary

America’s increasing economic inequality threatens our liberal democracy. We need urgently to find innovative tools to counter the erosion of our foundational, shared belief in opportunity and fairness, the American Dream.

Walter Dellinger

O'Melveny & Myers

Dawn Johnsen

Indiana University Maurer School of Law

On Key Issues, Judge Gorsuch Is Pro-Presidential Power

3/20/17  //  In-Depth Analysis

Although Judge Gorsuch is often described as "good" for the separation of powers, on key issues he is a formalist and would take a decisively pro-presidential view.

Leah Litman

U.C. Irvine School of Law

Embracing Federalism

3/16/17  //  Commentary

It is time for progressives to embrace federalism and to use Supreme Court precedents protecting states’ rights to fight against Trump administration policies

Erwin Chemerinsky

U.C. Irvine School of Law

Secretary Price Can’t Fix The CBO Score By Regulating

3/16/17  //  Commentary

HHS Secretary Price says the CBO report on the American Health Care Act is not believable because he will reduce costs through regulatory changes. Don't be fooled.

Nick Bagley

University of Michigan Law School

Why Trump's EPA Cannot Gut Climate Change Regulation

3/19/17  //  Commentary

Can EPA Administrator Scott Pruitt lawfully discard his agency's duty to regulate greenhouse gases? Probably not.

Eli Savit

University of Michigan Law School

The “One In, Two Out” EO Is Now Largely A Publicity Stunt

3/17/17  //  Commentary

Trump proudly describes it as a regulation buster, but OIRA has effectively neutered his widely-derided executive order

Rachel Sachs

Washington University Law School

Trump Administration Appointments

4/4/17  //  Commentary

Between the torpor of President Trump’s sub-cabinet nominations, and his frequent preference to nominate persons lacking prior government experience, the deconstruction, or perhaps reconstruction, of the administrative state may be well under way.

Peter L. Strauss

Columbia Law School

Reliance Defenses in the Trump Era and Beyond

3/23/17  //  Commentary

The transition to President Trump has massively shifted federal enforcement priorities. Does the Constitution protect people who relied on Obama's immigration, healthcare, or marijuana policies?

Zachary Price

U.C. Hastings College of the Law

Confusion Over The Essential Health Benefits

3/24/17  //  Quick Reactions

Last night, House Republicans released the text of the final manager’s amendment to the American Health Care Act. If it becomes law, the individual insurance market will likely collapse nationwide in 2018.

Nick Bagley

University of Michigan Law School

Why Jeff Sessions’s Reversal on Private Prisons Is Dangerous

3/23/17  //  Commentary

The Attorney General’s embrace of private prisons is a victory for the industry, but it threatens the safety of correctional officers and prisoners.

Chiraag Bains

Harvard Law School

Network Neutrality: What’s Next at the FCC?

3/21/17  //  Commentary

Among Obama-era FCC initiatives, none grabbed the public’s attention like the fight over net neutrality. Now that Republicans control the FCC, here's what might happen.

Daniel Deacon

U.C. Irvine School of Law

The Acosta Hearing & the “Deconstruction” of Federal Agencies

3/24/17  //  Quick Reactions

Hearings on President Trump's nominee for Secretary of Labor revealed little about the future of labor policy. But the hearings made crystal clear that Trump's executive orders and proposed budget threaten even popular and effective government programs.

Charlotte Garden

Seattle University School of Law

That Time When Republicans Re-Regulated Retirement Savings

4/11/17  //  In-Depth Analysis

Congressional Republicans care about one thing far more than their professed values and far more than the American people they claim to represent: protecting the financial services industry. This was recently made clear when they undid two key DOL rules.

Danielle D'Onfro

Washington University Law School

The Attack on American Cities

4/7/17  //  Commentary

Trump's anti-urban rhetoric has fanned the flames of a war by state governments against progressive cities. We see this in battles over sanctuary cities, LGBT rights, gun regulation, employee rights. The time has come for a campaign on behalf of city power.

Richard C. Schragger

UVA School of Law

Why The Keystone XL Pipeline Permit Can Be Challenged in Court

4/3/17  //  Commentary

The State Department's decision authorizing the Keystone XL pipeline raises a profound question about when courts can review agency action based in presidential power. The answer to that question has major implications for the rule of law.

Eli Savit

University of Michigan Law School

If Trump Guts Key Programs, Does Staying in the Paris Agreement Even Matter?

3/27/17  //  Commentary

Loudly withdrawing from the Paris Agreement would deal the process a symbolic blow. But it’s hard to see the Trump Administration’s attack on the Clean Power Plan and increased fuel economy standards as anything other than a withdrawal in all but name

Ann Carlson

UCLA School of Law

The Fiduciary Rule: Triaging Quality for “Access” and Small Business at All Costs

3/28/17  //  In-Depth Analysis

Ultimately, this Administration’s re-examination of the Obama-era Department of Labor fiduciary rule looks like little more than a gift to the retirement services industry at the expense of workers and retirees.

Danielle D'Onfro

Washington University Law School

Making Bureaucracy Great Again: Trump’s New Office of Innovation

3/27/17  //  Quick Reactions

Jared Kushner says he will run government like a business. But this administration has no understanding of government, or of business. And it doesn't respect the distinctive, unbusinesslike practices and principles of running a government.

Jon D. Michaels

UCLA School of Law

SCOTUS Warns Against Appointing "Unfit Characters"

3/24/17  //  Quick Reactions

A decision this week reminds us that President Trump is bound by laws, which he is violating, in making key appointments. The Acting U.S. Trade Representative, for instance, might well be occupying that role unlawfully.

Nikolas Bowie

Harvard Law School

Sherley You’re Joking

3/27/17  //  Commentary

A confused and poorly reasoned decision by the U.S. Court of Appeals for the D.C. Circuit shouldn’t be read to shield agencies from judicial review whenever they happen to be following an executive order.

Nick Bagley

University of Michigan Law School

Can Trump Treat the Consumer Bureau’s Director Like a Contestant on Celebrity Apprentice?

4/13/17  //  Commentary

The future of the CFPB remains murky. With political attacks and judicial challenges piling up, here's what you need to know about the path ahead for Elizabeth Warren's crowning achievement.

Deepak Gupta

Gupta Wessler PLLC

Jonathan Taylor

Gupta Wessler PLLC

Congress’s Vital Power of the Purse

4/5/17  //  Commentary

The upcoming budget fights will be ugly and brutal, but they implicate the most important practical means of constraining this president (or any other)—Congress’s power over appropriations. But the nature and limits of that power remain shockingly undefined.

Zachary Price

U.C. Hastings College of the Law

FCC’s Reversal on Prison Call Rates Demonstrates the Commission’s New Stance

3/29/17  //  Quick Reactions

The FCC has abandoned its legal defense of a 2015 order that placed new caps on the cost of phone calls placed by prison inmates. This reflects a mentality that will have major effects in prisons and elsewhere.

Daniel Deacon

U.C. Irvine School of Law

Republican (and Democratic) Hypocrisy on Faithful Execution

3/17/17  //  Commentary

President Obama pushed the limits of enforcement discretion. Trump may be worse. Will anyone check him if he is?

Zachary Price

U.C. Hastings College of the Law

Trump v. Unions

3/21/17  //  Commentary

January 20, 2017 marked the beginning of a new and dangerous age for labor. Here's an overview of the many challenges and threats that the American labor movement is likely to face under Trump.

Charlotte Garden

Seattle University School of Law

Updates | The Week of March 27, 2017

4/2/17  //  Daily Update

As Republicans turn to tax reform, Jon Barela argues that they should reject the Border Adjustment Tax.

The Story Thus Far: Housing

3/16/17  //  Daily Update

Thus far, most coverage of the Department of Housing and Urban Development has focused on the fact that the man named to lead it, Ben Carson, appears opposed to its core mission. Here are some useful analyses of the story thus far.

Updates | The Week of April 3, 2017

4/9/17  //  Daily Update

President Trump is taking an active approach to combat what he views as unfair trade practices. This will likely affect U.S. trade with China.

Updates | The Week of March 27, 2017

4/2/17  //  Daily Update

Hearings for his Secretary of Labor nominee demonstrated that President Trump’s budget proposal threatens even popular and effective government programs, as Charlotte Garden explains for Take Care. This week, the Trump Administration repealed a rule requiring federal contractors to disclose labor violations.

The Story Thus Far: Environmental Law

3/16/17  //  Daily Update

President Trump has already begun his assault on environmental regulations. Here are some useful analyses of the story thus far.

Updates | The Week of March 27, 2017

4/2/17  //  Daily Update

President Trump has signed bills repealing rules addressing teacher preparation and school accountability.

Updates | The Week of March 20, 2017

3/26/17  //  Daily Update

This week, President Trump’s administration rolled back protections for those in student loan default.

The Story Thus Far: Consumer Protection

3/16/17  //  Daily Update

Since Trump took office, bitter fights have erupted within the federal government about the future of consumer protection. Here are some useful analyses of the story thus far.

Updates | The Week of April 3, 2017

4/9/17  //  Daily Update

President Trump has taken a lot of action dismantling Obama-era environmental regulations. Environmental groups have been just as active in filing suit in response.

Updates | The Week of March 20, 2017

3/26/17  //  Daily Update

The Trump administration is poised to end Obama-era environmental protections. Some argue the Environmental Protection Agency cannot lawfully gut climate change regulations. Plus we saw a glimpse into President Trump’s EPA appointees.

Updates | The Week of March 20, 2017

3/26/17  //  Daily Update

As the President and Speaker attempted unsuccessfully to glue together a coalition to pass their Affordable Care Act (ACA) replacement plan, Take Care contributors examined its constitutionality in reference to arguments made against the ACA and looked at the consequences of the administration’s indecision on health policy.

Take Care

The Story Thus Far: Administrative Law

3/16/17  //  Daily Update

The Trump Administration appears eager to fight the administrative state by changing the rules of the game for regulation. Here are some useful analyses of the story thus far.

Updates | The Week of March 27, 2017

4/2/17  //  Daily Update

Last week saw the demise of Republican efforts to repeal and replace the Affordable Care Act. But this week saw concerns that the Trump Administration could nonetheless cause the ACA to implode. On Take Care, Nick Bagley and Rachel Sachs analyzed this possibility.

Updates | The Week of March 27, 2017

4/2/17  //  Daily Update

This week in administrative law saw analysis from Nick Bagley in Take Care.

Updates | The Week of March 27, 2017

4/2/17  //  Daily Update

President Trump signed an order rolling back many Obama-era climate change policies. Take Care covered this executive order extensively.

Updates | The Week of March 20, 2017

3/26/17  //  Daily Update

This week, a Take Care contributor predicted that the new Republican majority at the Federal Communications Commission might walk back net neutrality.

Updates | The Week of March 27, 2017

4/2/17  //  Daily Update

The Trump Administration has announced a shift away from Obama-era net neutrality rules as a bill allowing internet service providers to market customers' browsing history to third parties heads to President Trump's desk.

The Story Thus Far: Labor

3/16/17  //  Daily Update

President Trump is likely to pursue a ferociously anti-labor agenda. The battles ahead may define the future of labor and employment law in America—and the fate of organized labor. Here are some useful analyses of the story thus far.

Updates | The Week of March 20, 2017

3/26/17  //  Daily Update

The Trump administration is in for a fight with organized labor and its curb of agency regulatory power may put workers at risk.

Updates | The Week of March 20, 2017

3/26/17  //  Daily Update

The Trump administration newly argued that the Consumer Financial Protection Bureau is unconstitutional. Experts offered competing analyses.

Updates | The Week of April 3, 2017

4/9/17  //  Daily Update

President Trump may not be as inclined to help the working class as he indicated during his campaign.

Updates | The Week of March 27, 2017

4/2/17  //  Daily Update

The future of proposed legislation to weaken the CFPB is uncertain.

Updates | The Week of March 20, 2017

3/26/17  //  Daily Update

As President Trump leaves top advice-and-consent posts unfilled, commentators examined the American public’s complicated feelings about the federal bureaucracy and whether President Trump’s “one in, two out” regulation policy is anything more than a publicity stunt.