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.

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.

Updates | The Week of May 29, 2017

6/4/17  //  Daily Update

The FCC continues its efforts to undo net neutrality rules.

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

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

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

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

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.

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

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

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 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 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.

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

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.

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

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

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

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

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

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

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

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 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

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

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 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