Administrative Law

This body of law governs federal regulation. Changes to these doctrines can ricochet out in a hundred directions. Although wonky and technical, there is tremendous power here to define the ground rules for our administrative state.

How Do You Solve A Problem Like Scott Pruitt?

4/13/18  //  In-Depth Analysis

Can Scott Pruitt be stopped in court?

Eli Savit

University of Michigan Law School

Versus Trump: The Citizenship Question

4/5/18  //  Commentary

On a new episode of Versus Trump, Jason and Easha discuss lawsuits challenging the Trump Administration's decision to ask a question about citizenship on the 2020 census. Listen now!

Jason Harrow

Equal Citizens

Easha Anand

San Francisco

The NLRB’s Recusal SNAFUsal

4/5/18  //  Commentary

How Trump's appointees to the NLRB are rushing to judgment and undermining fair process.

Charlotte Garden

Seattle University School of Law

Census Smoke Signals

3/29/18  //  Commentary

Where there is smoke, there is usually a fire

Jennifer Nou

University of Chicago Law School

Versus Trump: California Versus The Wall [UPDATED WITH EPISODE]

3/8/18  //  Commentary

On a new episode of Versus Trump, Easha, Jason, and Charlie discuss a recent district court opinion that rejected California's challenge to the Trump Administration's expedited border wall projects in California. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

Versus Trump: Are Medicaid Work Requirements Legal?

2/15/18  //  Commentary

On a new episode of Versus Trump, Easha and Jason discuss a new lawsuit challenging the Trump Administration's approval of Kentucky's new rules for its Medicaid program. The new rules will require some Medicaid recipients to work 20 hours per week to receive health benefits, and they also impose other novel requirements. Listen now!

Jason Harrow

Equal Citizens

Easha Anand

San Francisco

Updates | The Week of January 22, 2018

1/28/18  //  Daily Update

The Government Accountability Office will investigate alleged fraud during the comment period on the FCC's proposed net neutrality rules. President Trump's decision to allow agencies with leftover funding to remain open during the government shutdown may have been illegal.

Updates | The Week of January 15, 2018

1/14/18  //  Daily Update

A federal judge denies Leandra English's motion for a preliminary injunction in the dispute over who is acting director of the Consumer Financial Protection Bureau.

Zachary Piaker

Columbia Law School

Update | The Week of November 27, 2017

12/4/17  //  Daily Update

A federal judge denied Leandra English's request for a temporary restraining order in the fight over who is the acting director of the CFPB.

Jeffrey Stein

Columbia Law School

Updates | The Week of November 20, 2017

11/26/17  //  Daily Update

The Department of Justice will no longer offer administrative guidance, thus reducing administrative transparency. The front-runner to head the U.S. Census Bureau espouses controversial views about redistricting and elections.

Updates | The Week of October 23, 2017

10/31/17  //  Daily Update

President Trump's regulatory task forces claimed they had identified dozens of regulations that could be repealed.

Updates | The Week of October 16

10/21/17  //  Daily Update

The Department of Homeland Security announced that it would require federal agencies to increase security for outgoing email and website traffic. President Trump has dismantled critical portions of President Obama's accomplishments through executive action and left further action up to Congress.

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

Symposium on 'Constitutional Coup' by Jon Michaels

1/14/18  //  Latest Developments

Take Care is pleased to host a symposium on Constitutional Coup

Joshua Matz

Publisher

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.

Versus Trump: Suing To Stop A Shrinking Staircase

1/25/18  //  In-Depth Analysis

On a new episode of Versus Trump, Easha and Jason discuss several lawsuits filed over President Trump's recent Proclamation that substantially cuts the size of two National Monuments: Bears Ears National Monument and Grand Staircase-Escalante, both in Utah. Listen now!

Jason Harrow

Equal Citizens

Easha Anand

San Francisco

You’re So Vain … You Probably Think This Book’s About You

1/8/18  //  Commentary

An introduction to this week's symposium on my new book, 'Constitutional Coup: Privatization’s Threat to the American Republic'

Jon D. Michaels

UCLA School of Law

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

Versus Trump: DACA's Back!

1/18/18  //  Commentary

On a new episode of Versus Trump, Easha, Jason, and Charlie discuss the big decision that forced the Trump Administration to restart the DACA immigration program. Listen now!

Charlie Gerstein

Civil Rights Corps

Easha Anand

San Francisco

Jason Harrow

Equal Citizens

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

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

President Trump's Assault on the Antiquities Act

12/5/17  //  Commentary

On Monday, President Trump announced that his administration was taking dramatic action to reduce the size of two national monuments in Utah. The President’s announcement is out of step with historical use of the Antiquities Act.

Concluding Thoughts on Constitutional Coup

1/18/18  //  In-Depth Analysis

Final thoughts on the future of the administrative state under President Donald Trump

Jon D. Michaels

UCLA School of Law

Protecting Against Arbitrary Government

9/27/17  //  In-Depth Analysis

Executive bullying creates a potential taint of illegitimacy, of arbitrariness, that could color the political and moral legitimacy of future governmental actions

K. Sabeel Rahman

Brooklyn 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

Trump Can’t Revoke DACA Without Going Through Notice and Comment

9/5/17  //  In-Depth Analysis

Dreamers should invoke administrative law to block Trump's DACA decision

Daniel Hemel

University of Chicago Law School

Net Neutrality as a Response to the Potential Harms of Vertical Integration

11/30/17  //  Commentary

The case for net neutrality comes down a pithy adage: Trust [that carriers won’t violate net neutrality principles], but verify [compliance through enforceable rules]

Tejas Narechania

UC Berkeley 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

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

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

Trump's ACA Sabotage and the President's Constitutional Take Care Duty

10/17/17  //  Quick Reactions

The President has not even tried to suggest that he is using his power in the law's interest. Rather, he has boasted that he is using his power to kill it

Abbe Gluck

Yale 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

Why Enjoining DACA’s Cancellation Is Wrong

1/12/18  //  Commentary

This decision, however attractive as a matter of policy, strikes me as mistaken under the law. It warrants swift reversal by higher courts.

Zachary Price

U.C. Hastings College of the Law

Polarization, Deregulation, and Situational Legalism

1/16/18  //  Commentary

Highlights from a recent conference on deregulation in the Trump era

Zachary Price

U.C. Hastings College of the Law

Versus Trump: Trump vs. The CFPB

8/24/17  //  Commentary

On this week’s episode of Versus Trump, Jason and Charlie talk about the Trump Administration's position in a lawsuit contending that the structure of the Consumer Financial Protection Bureau—commonly known as the CFPB—is unconstitutional, because its sole director does not serve at the pleasure of the President but instead serves a set term and can be terminated only for-cause. Listen now!

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

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

Encouraging Legislative Expertise-Forcing

8/24/17  //  In-Depth Analysis

A promising way for Congress to check the Executive, as well as to enhance its own efficacy and public standing, is by promoting expertise in the executive branch

Bijal Shah

Sandra Day O’Connor College of Law

Versus Trump: Versus DeVos (Interview with Toby Merrill)

8/3/17  //  Uncategorized

On this week’s episode of Versus Trump, Jason has an interview with Toby Merrill, the director of the Project on Predatory Student Lending at Harvard Law School, about several lawsuits she's involved with against newly-confirmed Secretary of Education Betsy DeVos. Listen now!

Jason Harrow

Equal Citizens

EPA Defies Its Own Best Analysis of the Clean Power Plan

10/10/17  //  In-Depth Analysis

Put simply, the Pruitt EPA is issuing its proposed repeal order despite its own best analysis showing that repealing the Clean Power Plan is a very, very bad idea.

Eli Savit

University of Michigan Law School

The Research on Malpractice and Nursing Homes

7/11/17  //  Commentary

The Trump administration wants to allow nursing homes to require their residents to arbitrate any disputes. Will that reduce nursing home quality?

Nick Bagley

University of Michigan Law School

Ending a Critical Obamacare Subsidy

10/12/17  //  Commentary

The Trump administration will terminate the Affordable Care Act’s cost-sharing payments, further destabilizing the already-fragile exchanges on the eve of open enrollment. The legal fallout will be complex, messy, and expensive.

Nick Bagley

University of Michigan Law School

An Airtight Opinion on Fugitive Emissions

7/12/17  //  Commentary

A recent D.C. Circuit opinion vindicates the principle that while agencies may have discretion over how laws are enforced, they cannot use that enforcement discretion to cancel legal obligations altogether.

Zachary Price

U.C. Hastings College of the Law

Why Does DHS Need a Corporate Headhunter?

12/18/17  //  Quick Reactions

The LA Times has reported on a $300M deal between the Department of Homeland Security and Accenture. This is a major development.

Jon D. Michaels

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

Some Doubts About A Suit to Block Trump From Stopping Cost-Sharing Payments

10/19/17  //  Commentary

Yesterday, a group of 19 states asked a California district court to stop the Trump administration from cutting off the cost-sharing payments. Their lawsuit likely isn't meritorious.

Nick Bagley

University of Michigan Law School

Against Cutting the President’s Purse Strings

1/7/18  //  In-Depth Analysis

No, Congress doesn't have a duty to provide the resources necessary for the executive branch to adequately fulfill its constitutional functions.

Zachary Price

U.C. Hastings College of the Law

Versus Trump: Updates, Y'all!

11/9/17  //  Commentary

You want updates, so we've got updates! On this week’s episode of Versus Trump, Jason and Easha revisit several important cases and news items that we've previously mentioned so that you have the latest information on them. Listen now!

Jason Harrow

Equal Citizens

Easha Anand

San Francisco

Not So Fast, Mr. President

11/24/17  //  In-Depth Analysis

Under Dodd-Frank, now that Richard Cordray has resigned as Director, the CFPB’s Deputy Director is the Bureau’s acting Director. President Trump may decide he doesn’t care what Dodd-Frank says, but he doesn’t get the final say.

Brianne J. Gorod

Constitutional Accountability Center

Enjoining the Contraception Rules

12/18/17  //  Commentary

A district court has stopped the Trump administration's hasty and poorly justified effort to relieve employers of their legal obligation to cover contraception.

Nick Bagley

University of Michigan Law School

Net Neutrality, Institutional Choice, and Modes of Enforcement

12/12/17  //  Commentary

What exactly does it mean for the Federal Trade Commission to take on net neutrality?

Tejas Narechania

UC Berkeley School of Law

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 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

Uphold the Oath

9/7/17  //  Quick Reactions

Federal employees are publicly reaffirming their loyalty, patriotism, and commitment to the Constitution.

Jon D. Michaels

UCLA 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

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

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

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

Jason Harrow

Equal Citizens

Easha Anand

San Francisco

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

The FCC's Net Neutrality Two Step

1/5/18  //  Commentary

The agency’s conflicting rationales seem largely arbitrary. Moreover, its action abandons a longstanding bipartisan consensus favoring net neutrality.

Tejas Narechania

UC Berkeley 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

The Integrity Of The Net Neutrality Record And Deference

1/12/18  //  Commentary

The FCC was targeted for a misinformation campaign and then relied upon an uncorrected record to support its order undoing net neutrality protections. That might matter.

Tejas Narechania

UC Berkeley School of Law

Updates | The Week of August 21, 2017

8/27/17  //  Daily Update

The President's control over regulatory policy raises questions about checks and balances, and makes clear the need for an independent Congressional Budget Office.

Updates | The Week of July 24, 2017

7/30/17  //  Daily Update

Commentary continues on the early deregulatory efforts of the Trump administration.

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 May 29, 2017

6/4/17  //  Daily Update

The FCC continues its efforts to undo net neutrality rules.

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 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 July 17, 2017

7/23/17  //  Daily Update

The Protect Democracy Project is seeking the release of communications it believes may reveal the administration's plans to discredit the Congressional Budget Office.

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 June 19, 2017

6/25/17  //  Daily Update

The Administration focuses on repealing rather than promulgating regulations.

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 July 24, 2017

7/30/17  //  Daily Update

The Trump administration is overselling its deregulatory achievements but key appointees that may change that are nearing confirmation.

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 July 10, 2017

7/16/17  //  Daily Update

Is the State Department's decision to delete resources, such as court manuals and environmental studies, illegal?

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 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 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.