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.

From Big Waiver to Waiver Unlimited

6/26/17  //  Quick Reactions

Perhaps the biggest concern with BCRA is that state waivers could degrade the financial protections available for employer-sponsored coverage

Nick Bagley

University of Michigan Law School

An Open Letter to Sen. Ben Sasse

6/21/17  //  Latest Developments

I recently wrote an open letter to Senator Ben Sasse regarding the American Health Care Act. Here's the conclusion.

Richard Primus

University of Michigan Law School

Congressional Standing Is Not an All-or-Nothing Proposition

6/19/17  //  Commentary

It is perfectly consistent to think the House lacks standing in House v. Price, but that members of Congress have standing to sue for Foreign Emoluments Clause violations.

Brianne J. Gorod

Constitutional Accountability Center

It’s Long Past Time to Take a Harder Look: The Latest in the DAPL Litigation

6/19/17  //  Quick Reactions

An important ruling against the Trump Administration's position on the Dakota Access Pipeline (DAPL).

Seth Davis

U.C. Irvine School of Law

Updates | The Week of June 12, 2017

6/18/17  //  Daily Update

The Department of Education rescinded Obama-era rules designed to expand a system for erasing federal loan debt of students defrauded by for-profit colleges.

Updates | The Week of June 12, 2017

6/18/17  //  Daily Update

The Senate is trying to replace the Affordable Care Act in secret. Women's health advocates have shifted their focus to the state level since the election.

Updates | The Week of June 12, 2017

6/18/17  //  Daily Update

The Trump Administration will recommend limits be placed on the Consumer Financial Protection Bureau.

Updates | The Week of June 12, 2017

6/18/17  //  Daily Update

The Federal Reserve raised the benchmark interest rate. The Treasury Department issued a report recommending rollbacks of Dodd-Frank. Meanwhile, Treasury Secretary Mnuchin walked back a statement he made last year that the president's tax plan would offer no absolute tax cuts to the wealthy.

Updates | The Week of June 12, 2017

6/18/17  //  Daily Update

President Trump plans to expand the workforce with apprenticeships, and plans to include permit reform in his infrastructure package. Meanwhile, the Department of Labor is planning to rescind the "persuader rule," and pro-family policies pushed by Ivanka Trump are woefully inadequate.

Labor Under Trump: More Disclosure for Unions; Less for Employers

6/14/17  //  In-Depth Analysis

Early signs suggest that the Trump Administration’s strategy is to weaken unions and deregulate employers.

Charlotte Garden

Seattle University School of Law

Updates | The Week of June 5, 2017

6/11/17  //  Daily Update

As appointed positions remain empty and the Trump Administration does not push rulemaking, agency regulation has ground to a near-halt.

Trump's Mistaken Signing Statement on Marijuana Enforcement

5/16/17  //  Commentary

Trump suggested in a recent signing statement that he could disregard an appropriations restriction on federal marijuana enforcement. But Trump is mistaken.

Zachary Price

U.C. Hastings College of the Law

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.

Health Care Reform Part IV: A Reminder that What We Do Matters

5/4/17  //  Commentary

The House will vote today on the American Health Care Act. Yet amendments to the bill were published only last night, there has been no updated score from the Congressional Budget Office (CBO), and no public hearings have been held. This is not an appropriate process.

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

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

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

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

"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

Health Care Reform Part III: Ignorance of the Law is No Excuse

5/3/17  //  Commentary

If a President does not understand what he is signing into law, how can he possibly “take Care that the Laws be faithfully executed”?

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

Versus Trump: The Healthcare Episode

6/1/17  //  Commentary

On a new episode of Versus Trump, Take Care's podcast, Easha and Jason dig into healthcare for the first time, as they take a deep dive into the House v. Price litigation that addresses whether certain payments to insurers under the Affordable Care Act have been properly appropriated. They also debate immigration rhetoric vs. action and discuss drug testing for unemployment benefits. Listen now!

Easha Anand

San Francisco

An Update on How to Easily Resolve the Gavin Grimm Case Concerning Title IX and Restroom Access

5/17/17  //  Commentary

With briefing almost completed in G.G. v. Gloucester County School Board, it’s good to remember the way in which the case can be resolved on straightforward statutory grounds without deciding whether Title IX prohibits discrimination against transgender persons, as such.

Marty Lederman

Georgetown Law

Michael C. Dorf

Cornell Law School

Samuel Bagenstos

University of Michigan Law School

Leah Litman

U.C. Irvine School of Law

Schools Failing Students with Disabilities - Still

5/11/17  //  Commentary

Higher graduation rates nationwide have left students with disabilities even further behind.

Eve Hill

Brown Goldstein & Levy

Going to Court for Civil Servants

4/28/17  //  Commentary

Protecting the civil service from purges, intimidation, or politicization is vital to a healthy democracy. That's why United to Protect Democracy has filed suit to combat a troubling pattern of bullying civil servants and trying to silence dissent.

Take Care

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

Ten Minutes of History on: The Constitutionality of Funding HBCUs

5/12/17  //  Commentary

President Donald Trump is known for changing his political views after a ten-minute history lesson. In this continuing feature, I encourage the president to take a few minutes to learn about the historical background of things he says. This first edition, on his signing statement regarding HBCUs, concerns one of his favorite historical topics: A nineteenth-century general who saw the Civil War coming, was angry, and did something about it.

Nikolas Bowie

Harvard Law School

Health Care Reform Part I: “Nobody Knew That Health Care Could Be So Complicated”

5/1/17  //  Commentary

The GOP health care bill would result in millions of Americans with pre-existing conditions losing their insurance. Statements by Trump to the contrary just aren't true. Whether he doesn't understand his own plan or is misrepresenting it, Trump has an obligation to be honest about what he has proposed for the nation's health care system.

On Climate, Trump is a Mainstream Republican

6/2/17  //  Commentary

Debate over whether the world is better if we stay in or get out and the game-show-style interest that Trump (in typical Trumpian fashion) has generated regarding his BIG DECISION should not obscure two basic facts: (1) The Trump environmental policy is disastrous; and (2) when it comes to the environment and global warming especially, Trump is a mainstream Republican.

Michael C. Dorf

Cornell Law School

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

Why Process Matters: Health Care Reform Edition

6/9/17  //  Commentary

While attention is drawn to Comey’s very public hearing, something else is happening, largely in secret. The Senate is moving forward with a health care bill that will likely take coverage from tens of millions of Americans, and that will likely cut taxes for the wealthy on the backs of the poor.

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

The Michigan Morsel

5/4/17  //  Commentary

To corral some last-minute votes, the House leadership has endorsed the Upton amendment to the American Health Care Act. That’s a shame: the amendment works at cross-purposes with other parts of the AHCA, is arbitrarily structured, and is ambiguous on a key point. It’s another example of the perils of doing health policy on the fly.

Nick Bagley

University of Michigan Law School

Trump’s Latest Affront To Women, and to the Constitution

6/2/17  //  In-Depth Analysis

A draft of the Trump Administration's revised contraception mandate has been leaked. If implemented, this policy would weaken civil rights for women. Moreover, the plan could violate the Establishment Clause by providing a religious accommodation for some private citizens only by shifting costs to others who may not share their beliefs.

Nelson Tebbe

Brooklyn Law School

Micah Schwartzman

University of Virginia School of Law

Richard C. Schragger

UVA School of Law

[UPDATED] Don't Believe the Hype: Understanding the Johnson Amendment Kerfuffle

5/4/17  //  Uncategorized

An executive order to be issued today likely will direct the IRS to exercise “maximum enforcement discretion to alleviate the burden of the Johnson Amendment, which prohibits religious leaders from speaking about politics and candidates from the pulpit.” Here's what that means and why it matters.

Marty Lederman

Georgetown Law

Moral Convictions And The Contraception Exemptions

6/5/17  //  Commentary

Yet another major flaw in the draft contraception rule, which would not only allow employers to drop contraception coverage for *religious* reasons, but would also (without any lawful basis) allow employers who have *moral* objections to do the same.

Nick Bagley

University of Michigan Law School

A Legal Challenge to Trump's "Religious Liberty" Executive Order

5/5/17  //  Commentary

Yesterday, the Freedom from Religion Foundation (FFRF) filed a lawsuit against Donald Trump’s most recent Executive Order, “Promoting Free Speech and Religious Liberty.” While there has been muted reaction to Trump’s executive order, the FFRF complaint makes two important points that have been mostly unappreciated.

Richard C. Schragger

UVA School of Law

The CFPB Is (Allegedly) A New Kind of Agency. Who Cares? (Part II)

5/23/17  //  In-Depth Analysis

More reasons why the D.C. Circuit should not rely on the CFPB’s purported novelty to suggest the CFPB is unconstitutional

Leah Litman

U.C. Irvine School of Law

Can President Trump Rewrite the Past?

5/3/17  //  Quick Reactions

In an executive order last week, President Trump purported to rewrite the text of two of President Obama’s decisions that withdrew millions of acres of the Arctic and Atlantic Oceans from future oil and gas speculation. Today, a group of environmental organizations has argued in court that Trump can’t just pretend the past never happened.

Nikolas Bowie

Harvard Law School

What Is Dead May Never Die: An AHCA Update

5/3/17  //  Commentary

With the AHCA back on the table, it's time to remember that the GOP really doesn’t like the constitutional arguments it made against the ACA

Leah Litman

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

Facts Matter—Even if the Sessions Department of Justice Doesn’t Realize It

4/26/17  //  Commentary

Just 100 days into the Trump Administration—the Administration that gave rise to the concept of #AlternativeFacts—there is reason to worry that facts don’t matter to the Justice Department now led by Trump’s Attorney General, Jeff Sessions.

Brianne J. Gorod

Constitutional Accountability Center

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

Another Illegal Executive Order--This Time National Monuments Are Under Attack

4/28/17  //  Commentary

Trump issued an order directing Interior Secretary to review a generation's worth of national monument designations. That order is likely illegal.

Michael Burger

Sabin Center for Climate Change Law at Columbia Law School

Standing in for the Executive: The Latest in House v. Price

5/26/17  //  Commentary

States standing to defend a federal law against Congress and the President when “lives are at stake”? Just the latest, fascinating turn that federalism has taken in the Age of Trump, however brief that age may be.

Seth Davis

U.C. Irvine School of Law

What Happens if the U.S. Remains in the Paris Agreement?

5/18/17  //  Commentary

If the Trump Administration chooses to remain in the Paris Agreement, it will be fascinating to see how the administration participates in its implementation. Here's a guide to some of the key legal and political questions.

Ann Carlson

UCLA School of 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

What Do We Really Gain if the U.S. Stays in the Paris Agreement?

5/17/17  //  Commentary

Trump already has eviscerated U.S. climate policy. Leaving the Paris Agreement would thus do little harm, while remaining would provide Trump with a fig leaf to obfuscate the damage he is doing. From an environmentalist point of view, the U.S. might be better off if Trump withdraws.

Ann Carlson

UCLA 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

Trump’s Meaningless Paris Announcement is a Win for His Opponents

6/5/17  //  Commentary

President Donald Trump’s announcement that he will withdraw the U.S. from the Paris Agreement may have dramatic consequences for his administration—but not in the ways he might imagine.

Ann Carlson

UCLA School of Law

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

How Trump Withdraws from the Paris Agreement Matters As Much as Whether He Does

5/31/17  //  Commentary

With the news that Trump will withdraw from the Paris Agreement, it's important to talk about how he may do so.

Ann Carlson

UCLA School of Law

FCC Signals it Will Eliminate Title II Treatment of Internet Service Providers

5/2/17  //  Quick Reactions

FCC's action welcomed by industry but will trigger (another) massive legal fight.

Daniel Deacon

U.C. Irvine School of Law

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

Trump and Pence Invoke Conscience to Block Contraception, Contrary to Our Religious Liberty Tradition

6/4/17  //  In-Depth Analysis

Regulatory changes that the Trump-Pence Administration reportedly plans to implement extend well beyond our religious liberty traditions (and beyond accommodations authorized by the Supreme Court)

Douglas NeJaime

UCLA Law School

Reva Siegel

Yale 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

The Constitutional Challenge To The CFPB

5/19/17  //  Commentary

The major constitutional challenge to the Consumer Financial Protection Bureau rests on the claim that the President of the United States does not have enough power over the agency.

Leah Litman

U.C. Irvine School of Law

An Update in House v. Price: When Inaction Masks Turmoil

5/24/17  //  Quick Reactions

Insurance companies are filing their applications for 2018 plans and rates now, with the last deadline in some states coming on June 21, and with many having passed already. If you’re an insurer and you don't know what the rules of the game will be, how can you play it?

Rachel Sachs

Washington University Law School

The CFPB Is (Allegedly) A New Kind of Agency. Who Cares? (Part I)

5/22/17  //  In-Depth Analysis

This two-part series explains why the CFPB’s purportedly novel structure is not a sign that the CFPB’s structure is unconstitutional.

Leah Litman

U.C. Irvine School of Law

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

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

Health Care Reform Part II: Real Trumpcare Versus Unicorn Trumpcare

5/2/17  //  Commentary

There are important differences between the *real* GOP healthcare bill and the *imaginary* healthcare bill that President Trump has described in interviews. Those differences may affect insurance coverage for millions of Americans and the price of insurance for many more.

Versus Trump: "What About Congress? + Steven Wu"

6/8/17  //  Commentary

On a new episode of Versus Trump, Take Care's podcast, Easha, Jason, and Charlie discuss Congress's role and powers in investigations of the Executive. Then, Jason talks with Steven Wu, a Deputy Solicitor General in the Office of New York Attorney General Eric Schneiderman, about the case against Trump University, the active role of states in recent years, and other issues in which New York is adverse to the President. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

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

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

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

Calculating Costs and Defining Our Future

4/25/17  //  Commentary

The March for Science reminded us that cutting funding to science today harms generations to come. Yet there is also another, subtler way the Trump Administration threatens to impose future costs on young people: the way in which it calculates costs themselves in cost-benefit analyses essential to our administrative state.

Eli Savit

University of Michigan Law School

Let’s Not Burn The Paris Agreement To Save It

5/17/17  //  Commentary

Today on Take Care, Professor Ann Carlson offers a provocative idea. She suggests that we should be rooting—alongside EPA administrator Scott Pruitt—for the Trump Administration to withdraw the United States from the Paris climate accords. Here’s a less provocative take: No, we shouldn’t.

Eli Savit

University of Michigan Law School

Healthcare Reform Part V: Don’t Forget About HHS

5/5/17  //  Commentary

Waivers granted by HHS are critical to the design of the Republican healthcare legislation and may have a huge effect on how it works in practice. Here's a preliminary analysis of how HHS Secretary Tom Price is likely to exercise his discretion with respect to waivers.

Rachel Sachs

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

The New Contraception Rule Is Procedurally Flawed

6/1/17  //  Commentary

The Trump Department of Health and Human Services has proposed a massive expansion of the program that provides employers and exemption from providing their employees with contraceptive coverage. But they have not sought notice-and-comment on the rule, and that could be a major problem.

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

Versus Trump Podcast: G.G. Case + Patti Goldman

5/25/17  //  Commentary

On a new episode of Versus Trump, Take Care's podcast, we discuss the status of G.G. v. Gloucester County School Board, a major case about transgender rights, and then speak with Patti Goldman of Earthjustice about an important lawsuit that her organization has filed.

Charlie Gerstein

Civil Rights Corps

Easha Anand

San Francisco

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

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.

Helen Klein Murillo

Harvard Law School '17

Leah Litman

U.C. Irvine School of Law

Taking the Nuclear Option Off the Table

5/23/17  //  Commentary

Last Thursday, fifteen states and the District of Columbia moved to intervene in House v. Price, the case about the ACA’s cost-sharing reductions. At the same time, they asked the court to hear the case promptly. This is a bigger deal than it may seem, and could offer some comfort to insurers that are in desperate need of it.

Nick Bagley

University of Michigan Law School

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.

Updates | The Week of May 1, 2017

5/7/17  //  Daily Update

President Trump continues to debate pulling out of the Paris Agreement. He has been sued for trying to undo two of President Obama’s decisions withdrawing millions of acres of the Arctic and Atlantic Oceans from future oil and gas speculation.

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 June 5, 2017

6/11/17  //  Daily Update

Major internet companies are reacting with disapproval to FCC plans to eliminate net neutrality rules.

Updates | The Week of April 17, 2017

4/23/17  //  Daily Update

The Consumer Financial Protection Bureau continues to be challenged by the Trump administration.

Take Care

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.

Updates | The Week of April 17, 2017

4/23/17  //  Daily Update

FCC Chair Ajit Pai has taken steps to roll back Obama-era rules including business broadband price caps; he also solicited feedback on pulling back net neutrality.

Take Care

Updates | The Week of May 29, 2017

6/4/17  //  Daily Update

The Trump Administration is considering broad exemptions to the Affordable Care Act's birth control mandate.

Updates | The Week of May 8, 2017

5/14/17  //  Daily Update

Uncertainty remains about the future of the United States' commitments under the Paris Climate Agreement. Debate over the status of twenty-seven National Monuments heated up as the comment period for the Interior Department's review opened.

Updates | The Week of April 24, 2017

4/30/17  //  Daily Update

This week, the March for Science took place in cities around the world — the Trump Administration was the recipient of heavy criticism.

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 April 10, 2017

4/16/17  //  Daily Update

Education Secretary Betsy DeVos has weakened consumer protections for student loan borrowers

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 April 10, 2017

4/16/17  //  Daily Update

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

Updates | The Week of June 5, 2017

6/11/17  //  Daily Update

The Trump Administration pulls back on health and safety regulations; its draft contraceptive rule has no legal foundation.

Updates | The Week of May 1, 2017

5/7/17  //  Daily Update

Congressional Republicans may craft a tax reform proposal much different from President Trump's proposed bill.

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.

Helen Klein Murillo

Harvard Law School '17

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 24, 2017

4/30/17  //  Daily Update

A coalition of 21 state attorneys general wrote a letter to Education Secretary Betsy DeVos, criticizing her decision to withdraw federal guidance issued by the Obama administration to increase consumer protections in student loan servicing. President Trump signed an executive order requiring Education Secretary Betsy DeVos to conduct a review of whether the federal government exceeded its legal authority in K-12 schools.

Updates | The Week of June 5, 2017

6/11/17  //  Daily Update

The Trump Administration's plan to encourage cities, states, and corporations to provide infrastructure funding in lieu of the federal government may leave taxpayers without clear benefits and with greater costs.

Updates | The Week of May 29, 2017

6/4/17  //  Daily Update

President Trump announced that he will withdraw the United States from the Paris climate accord.

Updates | The Week of April 17, 2017

4/23/17  //  Daily Update

The Trump Administration spent the week making moves to undo Obama-era environmental regulations while advocates have challenged the constitutionality of the Congressional Review Act.

Take Care

Updates | The Week of April 10, 2017

4/16/17  //  Daily Update

The Trump administration's proposal to revoke the Department of Labor's "fiduciary rule" is causing controversy within the agency, and the repeal of Obama-era Department of Labor regulations by congressional Republicans may actually increase regulatory burdens.

Updates | The Week of April 24, 2017

4/30/17  //  Daily Update

FCC Chairman Ajit Pai’s proposed plans to roll back Obama-era net neutrality rules have attracted heavy criticism.

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 April 24, 2017

4/30/17  //  Daily Update

This week, the FCC suggested a plan to reduce government oversight of high-speed internet providers, undercutting Obama-era policies preventing cable companies from blocking or slowing dock online content.

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.

Helen Klein Murillo

Harvard Law School '17

Updates | The Week of April 10, 2017

4/16/17  //  Daily Update

Despite the failure of the proposed American Health Care Act, the Trump administration and congressional Republicans continue to discuss plans to repeal and replace the Affordable Care Act. The Trump administration continues to consider the possibility of withholding insurer subsidies.

Updates | The Week of April 17, 2017

4/23/17  //  Daily Update

Proposed amendments to an updated Republican health care bill have been circulating, prompting legal scholars and advocates to push back on specific elements.

Take Care

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

Updates | The Week of May 29, 2017

6/4/17  //  Daily Update

The FCC continues its efforts to undo net neutrality rules.

Updates | The Week of May 1, 2017

5/7/17  //  Daily Update

The Senate passed the $1.1 trillion funding bill passed in the House.

Updates | The Week of May 1, 2017

5/7/17  //  Daily Update

President Trump misrepresents the content of the American Health Care Act.

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 April 24, 2017

4/30/17  //  Daily Update

The House delayed a vote on a revised healthcare bill, denying President Trump a 100-day win. The House Freedom Caucus, which opposed President Trump's earlier plan to repeal the Affordable Care Act, now supports a more conservative version of the bill.

Updates | The Week of April 17, 2017

4/23/17  //  Daily Update

President Trump's deregulatory agenda begins to take shape and Professor Naomi Rao is nominated to head the Office of Information and Regulatory Affairs.

Take Care

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 17, 2017

4/23/17  //  Daily Update

Tax reform is still very much on the Administration's agenda, with Steven Mnuchin hinting that reforms would be released soon.

Take Care

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 June 5, 2017

6/11/17  //  Daily Update

President Trump decided to nominate Joseph Otting as Comptroller of the Currency.

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 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 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 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.

Helen Klein Murillo

Harvard Law School '17

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 April 10, 2017

4/16/17  //  Daily Update

President Trump retreated on a campaign promise to eliminate the Export-Import Bank, and commentators urged against politicization of the Federal Reserve.

Updates | The Week of April 24, 2017

4/26/17  //  Daily Update

This week, President Trump unveiled his tax plan with proposed drastic reductions in individual and corporate tax rates. On the heels of this announcement, Treasury Secretary Steven Mnuchin made clear that President Trump does not intend to release his tax returns.

Updates | The Week of May 29, 2017

6/4/17  //  Daily Update

Analysis continues of the DC Circuit's en banc hearing of the constitutionality of the CFPB.

Updates | The Week of June 5, 2017

6/11/17  //  Daily Update

The fight over the U.S. withdrawal from the Paris climate agreement will extend beyond the 2020 election and may create problems for the U.S. under international legal frameworks.

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.

Helen Klein Murillo

Harvard Law School '17

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.

Updates | The Week of June 5, 2017

6/11/17  //  Daily Update

Senators called upon Education Secretary DeVos to explain the proposed budget for the Department of Education.

Updates | The Week of May 1, 2017

5/7/17  //  Daily Update

Secretary of the Department of Housing and Urban Development Ben Carson linked federal assistance to dependence on the government.

Updates | The Week of May 8, 2017

5/14/17  //  Daily Update

President Trump's signing statements to the Consolidated Appropriations Act of 2017 drew claims of unconstitutionality.

Updates | The Week of April 17, 2017

4/23/17  //  Daily Update

President Trump's federal hiring freeze and his embrace of Bush-era appointees have both faced backlash.

Take Care

Updates | The Week of April 24, 2017

4/30/17  //  Daily Update

Reversing course, this week President Trump decided not to pull out of NAFTA. The Trump Administration vowed to undo the Obama Administration's requirement that employers provide birth control their employees.

Updates | The Week of April 17, 2017

4/23/17  //  Daily Update

Education Secretary Betsy DeVos has made moves to reduce student-loan accountability and withdraw Obama-era policy guidance on student loan servicing.

Take Care

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.

Helen Klein Murillo

Harvard Law School '17

Updates | The Week of May 8, 2017

5/14/17  //  Daily Update

The House took a first step towards dismantling Dodd-Frank.

Updates | The Week of May 8, 2017

5/14/17  //  Daily Update

Extensive commentary continued on the American Health Care Act. Senators condemned HHS Secretary Tom Price for closing off agency communication with Congress.

Updates | The Week of May 29, 2017

6/4/17  //  Daily Update

Analysis occurs of congressional members' efforts to make union organizing much harder and the Administration's revised parental leave policy.

Updates | The Week of April 24, 2017

4/30/17  //  Daily Update

This week, Eli Savit analyzed the Trump Administration's new formulas for cost-benefit analyses. Though President Trump has signed more executive orders than any president since FDR, many of those orders contain little substance.

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.

Helen Klein Murillo

Harvard Law School '17

Updates | The Week of April 10, 2017

4/11/17  //  Daily Update

The Federal Communications Commission is considering elimination of net neutrality rules, but consumer groups and congressional Democrats will likely object.

Updates | The Week of April 24, 2017

4/30/17  //  Daily Update

Last week, President Trump signed an executive order requiring the Treasury Department to review certain regulations associated with Dodd-Frank.

Updates | The Week of May 1, 2017

5/7/17  //  Daily Update

The D.C. Circuit Court of Appeals denied en banc review of a decision upholding the Federal Trade Commission’s net neutrality rules.