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The Equity E.O.: Building A Regulatory Infrastructure Of Inclusion, Olatunde C.A. Johnson
The Equity E.O.: Building A Regulatory Infrastructure Of Inclusion, Olatunde C.A. Johnson
Faculty Scholarship
Among his first acts, President Biden signed Executive Order 13,985 to advance “Racial Equity and Support for Underserved Communities Through the Federal Government.” Alongside an order directing regulatory review to include “social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations” and an ambitious infrastructure plan, this Equity E.O. signals a new engagement of the administrative state in proactively promoting racial equity and other dimensions of inclusion. The outlines of the infrastructure initiative are still emerging, but what appears key is its conceptualization of infrastructure as extending beyond roads and buildings to the social and …
Recovering The Lost History Of Presidential Removal Law, Jane Manners, Lev Menand
Recovering The Lost History Of Presidential Removal Law, Jane Manners, Lev Menand
Faculty Scholarship
On March 3, 2020, the Supreme Court heard argument in Seila Law v. CFPB, the biggest removal law case since Free Enterprise Fund v. PCAOB was decided a decade ago. The petitioner challenges the constitutionality of the Consumer Financial Protection Bureau, the independent agency established by the 2010 Dodd-Frank Act (DFA) to protect consumers from harmful financial products. Seila Law, a California firm under investigation by the CFPB for its debt-relief marketing practices, argues that statutory limits specifying that the president can fire the CFPB director only for “inefficiency, neglect of duty, or malfeasance in office” (INM) violate the …
A Softer, Simpler View Of Chevron, Peter L. Strauss
A Softer, Simpler View Of Chevron, Peter L. Strauss
Faculty Scholarship
Justice Kennedy's concurrence in Pereira gives reason to hope that the Court may be finally catching on to the difficulties it created by Chevron's opening language, as distinct from its inherent reasoning. When courts quote language like "precise question" and "permissible" to limit themselves (as Justice Scalia and others unfortunately tended to reinforce by their quotations from the opinion), they stray not only from judicial function but also from the statute (APA) that instructs them how to review, and which strangely the opinion does not mention. But Chevron actually (a) independently found and defined a statutory gap within which …
Recent Developments In Administrative Law: The Tremors Of Two March 9, 2015 Supreme Court Decisions, Part Ii: Association Of American Railroads, Peter L. Strauss
Recent Developments In Administrative Law: The Tremors Of Two March 9, 2015 Supreme Court Decisions, Part Ii: Association Of American Railroads, Peter L. Strauss
Faculty Scholarship
Two decisions of the United States Supreme Court announced March 9, unanimous in reversing what had been surprising and potentially disruptive administrative law decisions by the United States Court of Appeals for the D.C. Circuit, could themselves portend rather striking changes in American administrative law. This essay considers Department of Transportation v. Association of American Railroads, which opens for decision on remand important constitutional questions about the structures Congress employs for hybrid public private bodies like AMTRAK, the United States Postal Service, and the Federal Open Market Committee. (See p. 4 above for analysis of Perez, Secretary of Labor …
Recent Developments In Administrative Law: The Tremors Of Two March 9, 2015 Supreme Court Decisions, Part I: Perez, Peter L. Strauss
Recent Developments In Administrative Law: The Tremors Of Two March 9, 2015 Supreme Court Decisions, Part I: Perez, Peter L. Strauss
Faculty Scholarship
Two decisions of the United States Supreme Court announced March 9, unanimous in reversing what had been surprising and potentially disruptive administrative law decisions by the United States Court of Appeals for the D.C. Circuit, could themselves portend rather striking changes in American administrative law. This essay considers Perez v. American Mortgage Bankers, which both overstates Vermont Yankee Nuclear Power Corp, Inc. v. Natural Resources Defense Council, Inc. and invites reconsideration of so-called Auer deference. (See p. 12 below for analysis of Department of Transportation v. Association of American Railroads.)
Incorporating By Reference: Knowing Law In The Electronic Age, Peter L. Strauss
Incorporating By Reference: Knowing Law In The Electronic Age, Peter L. Strauss
Faculty Scholarship
Last October, the Office of the Federal Register published a Notice of Proposed Rulemaking (78 Fed. Reg. 60,784 (Oct. 2, 2013)) to revise its regulations governing the practice of "incorporation by Reference," which permits federal agencies to create binding regulatory obligations just by referring to standards that have been developed by private nongovernmental organizations, standards development organizations (SDOs) such as the American National Standards Institute (ANSI) or the American Society of Mechanical Engineers (ASME). This rulemaking should be of substantial interest to the occupational safety community. While its comment period has closed, comments remain open until May 12, 2014, on …