A year of writing this blog – and 115 … now 116 posts – warrants a traditional end-of-year review and prospective for next year. For the Federal Regulations Advisor to be useful, it must be responsive to you, its readers.
Top 10 Posts: Popularity is often fickle, skewed toward longevity and against recent posts, but each post has its own value. Most posts are written as “breaking news” and some break more news than others. Here are the top 10 most read posts on the Federal Regulations Advisor for 2012, with a few additional thoughts for 2013, in traditional end-of-year descending order:
10. Labor Enjoined from Regulating Temporary Worker Visas: No Statutory Delegated Authority – The government has appealed to the United States Court of Appeals for the Eleventh Circuit and affirmance could make require completely reworking regulatory relationships between the Departments of Labor (DOL) and Homeland Security (DHS). A circuit split may, in this instance, require a statutory fix.
9. Interpreting Regulations During Litigation: Rethinking Agency Deference II –A post with hope, but the Supreme Court limited somewhat the application of Auer deference in Christopher v. SmithKline Beecham Corp., but did not take major steps to curtail the practice of judicial deference to agency positions taken in briefs. The Court took a very limited view of the issue because the United States changed position, a point that could not be predicted in the original post. Deference to agency interpretation will be a continuing theme.
8. NLRB Posting Rule Enforcement Provisions Struck Down – The United States District Court for the District of Columbia’s initial decision striking down the NLRB rule requiring that employers post the NLRB’s version of employee rights, was later joined by a decision from the District of South Carolina. On appeal, the United States Court of Appeals for the District of Columbia Circuit enjoined the posting rule pending its decision, which could come at any time. Unfortunately for the NLRB, its only other rule in recent years, dealing with representation elections, was struck down for want of a quorum, and that decision is on appeal.
7. DOJ’s “Departure Bar” Regulation to Reopening Immigration Cases: Another Circuit, Another Loss – The Department of Justice has not taken steps to amend the rule that an alien who departs the United States (voluntarily or forcibly) may not seek to reopen proceedings and this problem is long overdue for resolution. This “no win” situation needs to be resolved.
6. SCOTUS to Decide on Deference to Agency Jurisdiction Interpretations – In the 30 years since the Supreme Court decided that courts should defer to agency interpretations of their programmatic statutes, a core issue has never been resolved. The Supreme Court has scheduled oral argument on whether courts should defer to agency interpretations of their own statutory jurisdiction for January 14, and a significant decision is expected in the Spring.
5. Unified Agenda and Regulatory Plan Finally Released – 2012 Insight – (this would be the Fall 2011 Unified Agenda) – The Office of Management and Budget (OMB) struggled with its planning responsibilities in an election year, completely missing a cycle and releasing the next Unified Agenda late. The viability of the Unified Agenda as a planning tool may need to be review.
4. IRS violated APA, Must Propose Rule, in Phone Service Excise Tax Refund Case – The Internal Revenue Service (IRS) has yet to resolve the thorny little problem of refunding illegally collected phone excise taxes after the statute expired and promulgating a valid rule under the Administrative Procedure Act (APA) to do so. Whether this issue will arise again is anyone’s guess, but this post was popular because the IRS is not.
3. Administration’s Higher Education Act Rules Get Failing Grade from D.C. Circuit – The court vacated parts of the Administration’s signature educational reforms (for profit colleges) because the Department of Education (DOEd) failed to adequately explain regulatory compensation prohibitions; exceeded the statute in defining applicable “misrepresentations” and in eliminating procedural safeguards; and exceeded the “logical outgrowth” of the proposed rule on “distance learning.” The District Court sent the rules back for more work. The educational efficacy of “for profit” schools will arise again.
2. Clear Statutes & Unforeseen Circumstances: The Danger of Overreach – Not unlike the problems vexing the NLRB, the IRS, and Education, the Federal Election Commission (FEC) lost a high-profile rule in the rapidly changing and tumultuous political finance arena. Whether in 2013 or later in the next election cycle, election financing issues remain a constant.
1. Clean Air Act and APA Effective Date Stays: Sierra Club v. Jackson – again – Although an early post, this arcane effective date stay litigation portended multiple appearances by the Environmental Protection Agency (EPA) in this blog, including being a staple in the Monday Morning Regulatory Review. Other major activity – more important, but drawing less attention, included:
- D.C. Circuit vacated an interim final Clean Air Act nonconforming penalties rule (diesel engines) as violating the APA;
- D. C. District Court held that EPA exceeding statutory authority in issuing surface mining guidance;
- D. C. Circuit vacated the cross-state air pollution rule;
- Supreme Court scrutinized whether the Department of Justice (DOJ) Solicitor General’s was forthcoming about regulatory changes reaffirming EPA’s long-held position in litigation.
EPA’s “popularity” is the product of distinct but related phenomena: (1) a huge mission verging on the regulation of chaos theory, (2) the singularly largest regulatory docket in the Federal Government, and (3) high-stakes regulation – both politically sensitive and costly. Understated is the fact that EPA makes significant contributions to the regulatory process for which it rarely receives credit. This blog is about the regulatory process, not the environment, but it is sometimes hard to tell the difference.
Nine of the most read posts deal with litigation and readership has consistently indicated a strong interest in litigation. The Federal Regulations Advisor will, of course, continue this review.
Some Demographics: On a lighter side, the Federal Regulations Advisor is read in every State of the Union; that small seat of Government leads the way, but circuit riding is a major part of this blogs mission. Readers came from, in rank order:
- District of Columbia,
- New York,
- Florida, and
(Alaska came in last).
The Federal Regulations Advisor was read in 83 different countries this year, not counting the “not set” “stateless” persons, and read in multiple languages, including Spanish, most European languages, and Chinese, Japanese, and Korean.
The largest source of traffic was the ubiquitous Google. Loyalty counts, however, as return visitors who bookmarked this blog for direct access, or perhaps subscribe to the Federal Regulations Advisor RSS feed or email notifications, came in second. Two appreciated sources for large numbers of readers were the Law Professors Typepad – the platform for the Law Professors Blawg Network – and Justia Blawg Directory of more than 5,000 legal blogs.
2013 & a thank you: This blog tries to make sense of it all as it reaches its first anniversary and this, its 116th post. Thanks to colleagues and staff at Lexblog for the many services provided over the course of 2012 supporting this effort. Comments, criticisms, and suggestions on how to improve the Federal Regulations Advisor will be appreciated. Happy 2013.