Last week, the United States Court of Appeals for the Eighth Circuit joined the intercircuit conflict over the Administrative Procedure Act (APA) validity of the Attorney General’s regulations applying the Sex Offender Registration and Notification Act (SORNA) to offenses committed prior to SORNA’s effective date. The United States District Court for the Eastern District of Pennsylvania continued the confusion over the Department of Labor (DOL)’s authority to regulate H-2B visas. In the agencies, the Federal Communications Commission (FCC) was pummeled with inconsequential public comments on its net neutrality / fast lane proposed rule – with no substantive effect. Continue Reading
Welcome back from summer vacation and a brief hiatus for this column. Even with the Labor Day weekend out of the way, regulatory actions continue at a slow pace. Of note, two procedural orders delayed the resolution of the intercircuit conflict over whether the Internal Revenue Service (IRS) may permit tax subsidies in States where the federal government operates a health exchange under Obamacare. From the administrative side, the Office of Management and Budget (OMB) continued a slow march of policy and legal significant regulatory reviews. Continue Reading
The Administration’s release last Friday of new Obamacare contraceptive mandate rules in light of recent adverse United States Supreme Court (SCOTUS) decisions overshadowed other agency actions last week, but some are noteworthy. The Department of Agriculture (DOA) published controversial poultry inspection regulations and the Department of Transportation (DOT) proposed harmonization of hazardous materials regulations with certain international standards through incorporation by reference (IBR). IBR is notable in its own right because the National Archives and Records Administration (NARA) submitted its final IBR revisions to the Office of Management and Budget (OMB) for interagency and executive review, while the Department of Homeland Security (DHS) submitted a rollback of airline fees and the Environmental Protection Agency (EPA) submitted its overdue Renewable Fuel Standards. The widely reported increased tempo of regulatory activity has not yet materialized in a tangible form, but intangible indications suggest that the Fall will be very active. Continue Reading
The Administration released new and expected revisions and proposals to Obamacare (Patient Protection and Affordable Care Act or PPACA) regulations to address exemption from the contraceptives mandate for non-profit and for-profit organizations in light of recent adverse United States Supreme Court (SCOTUS) decisions. One interim final rule (IFR) addresses non-profits related to religious institutions, while a proposed rule addresses privately held for-profits whose owners have religious objections to the contraceptive mandate. A preliminary review suggests that the Administration has set an awkward path forward and probably ensured another round of more refined litigation. Continue Reading
The summer doldrums advanced further last week. Several different actions by the Courts of Appeals warrant mention this morning, including denial of multiple petitions for review of a Federal Energy Regulatory Commission (FERC) rule that manages the development of the nationwide electricity grid and a remand of an Environmental Protection Agency (EPA) pollution permit waiver as violating the Clean Air Act (CAA). Additionally, the Government Accountability Office (GAO) critiqued EPA’s economic and impact analyses, a point of litigation contention, illuminating a few weaknesses that may appear in court. And lest we forget that the Office of Management and Budget (OMB) continues to review significant regulatory actions, a snapshot of the week. Continue Reading
The dog days of summer mean that this column is filled with many odds and few ends. In new litigation, a dozen states sued the Environmental Protection Agency (EPA) claiming that the agency lacks authority to issue a rule that it has not yet been issued. On the other hand, the National Labor Relations Board (NLRB) ratified some administrative actions taken when it lacked a quorum, but resolved none of the thorny administrative law issues. In the middle, the Federal Communications Commission (FCC) released 1.1 million public comments on its most recent internet neutrality / open internet / fast lane proposals with no material effect because of fundamental unanswered issues in the FCC rulemaking process. And at the far corner of the rulemaking universe, a district court required rulemaking to implement rulemaking in capital habeas corpus proceedings. Continue Reading
Little new and unexpected agencies activity compels review in the last week, but the courts were fully engaged on two very different, critical regulatory issues. The intercircuit conflict over whether the Internal Revenue Service (IRS) may adopt regulations extending Obamacare tax credits beyond the 16 State-established Obamacare exchanges to include the federal-established exchanges in 34 States advanced in different directions with new filings. In a more esoteric issue, the United States Court of Appeals for the District of Columbia expanded exceptions to the United States Constitution’s First Amendment guarantee of free speech or silence for agency regulations that compelled public disclosure of facts. Continue Reading
A number of volatile issues made ripples in regulatory practice last week that will not be found in the general media. The saga of the religious exemption from the contraceptives mandate in Obamacare (Patient Protection and Affordable Care Act or PPACA) added an introduction to a new chapter last week when the Department of Justice (DOJ) committed the Department of Health and Human Services (HHS) and its cohorts to a plan for new regulations. Meanwhile, the Food and Drug Administration (FDA) lost a significant report and recommendations to support regulations because its appointment of the advisors was ethically flawed. Elsewhere in HHS, the Health Resources Administration (HRA) issued a new interpretive rule in the face of a district court opinion that HHS did not have the authority to adopt substantive rules. On the new regulations front, the Department of Transportation (DOT)’s Pipeline and Hazardous Materials Safety Administration (PHMSA) released an expected proposed rule for tank cars carrying higher volatility crude oil, ethanol, and other hazardous material in light of several recent wrecks, but a scoping question is brewing in their economic analysis. Continue Reading
On this, the same day as the D.C. Circuit decision in Halbig v. Burwell, the United States Court of Appeals for the Fourth Circuit took the opposite tack in King v. Burwell: finding that the provisions of Obamacare (Patient Protection and Affordable Care Act or PPACA), taken together, were ambiguous, and apply Chevron Step 2 deference to the agency’s interpretation, affirmed the district court decision.
For reasons explained below, we find that the applicable statutory language is ambiguous and subject to multiple interpretations. Applying deference to the IRS’s determination, however, we uphold the rule as a permissible exercise of the agency’s discretion.
This intercircuit conflict is fairly clear and certainly affects a significant issue – increasing the likelihood (perhaps all but assuring) that the issue will soon reach the United States Supreme Court (SCOTUS). The Department of Justice (DOJ)’s Solicitor General has substantial incentive now to seek certiorari in Halbig – indeed, DOJ appears to have already signaled that it will seek some further review – and the plaintiffs in King have no reason not to pursue review by the High Court.
The United States Court of Appeals for the District of Columbia Circuit today ordered vacated a critical Internal Revenue Service (IRS) regulation extending tax credits under Obamacare (Patient Protection and Affordable Care Act or PPACA) to participants in federal health care exchanges as contrary to the clear language of the statute. Halbig v. Burwell substantially reduces the application of Obamacare requirements and creates a new and devastating uncertainty within the regulatory process that the Administration must answer immediately. Continue Reading