The Supreme Court of the United States (SCOTUS) today decided (5+1–3), in City of Arlington v. FCC, that courts do owe agencies deference in interpreting the statutory scope of agency jurisdiction. The court held that lower courts should apply Chevron deference to agency determinations of their own jurisdiction in ambiguous statutes by rejecting the jurisdictional… Continue Reading
Category Archives: Agency Authority
Subscribe to Agency Authority RSS FeedMonday Morning Regulatory Review – 5/20/13
Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Process, Judicial Review & RemediesThis week’s review is all about litigation updates: A new decision from the United States Court of Appeals for the Third Circuit struck down President Obama (POTUS)’s recess appointments to the National Labor Relations Board (NLRB) as unconstitutional. The ongoing authority feud surrounding the Food and Drug Administration (FDA) limitation of the emergency contraceptives for… Continue Reading
Teenagers and Plan B One Step: Appeal and Request for Stay of FDA Compliance with District Court Order
Posted in Agency Authority, Judicial Review & RemediesUPDATE (May 1, 2013 2015): In an unsurprising move, the Department of Justice (DOJ) is appealing the district court’s ruling in Tummino v. Hamburg II after the FDA announced yesterday a new approval for the sale of the Plan B One Step (or morning after pill) over the counter with proof of age of at… Continue Reading
Monday Morning Regulatory Review – 4/29/13
Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Review & Remedies, Regulatory ProcessBusy and long today: The Department of Health and Human Services (HHS) submitted to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), a hospital disproportionate share payment reduction proposed rule. OIRA may have a new Administrator who may or may not have the opportunity to review the rule –… Continue Reading
Homeland Security & Labor Issue H-2B Regulations: Authority Solved?
Posted in Agency Authority, Judicial Review & Remedies, Regulatory ProcessThe Department of Homeland Security (DHS) and the Department of Labor (DOL) moved quickly – perhaps too quickly – to resolve legal authority issues raised by recent court decisions vacating low-skilled worker visa (H-2B) regulations by adopting a “joint” interim final rules (IFR) that is available for public inspection and will be published in tomorrow’s… Continue Reading
Court Requires FDA to Grant ‘Plan B’ OTC Status – Authority Issues
Posted in Agency Authority, Constitutional Issues in RegulationsA judge of the United States District Court for the Eastern District of New York has ordered the Department of Health and Human Services (HHS) Food and Drug Administration (FDA) to make “Plan B” – the post-intercourse, pre-fertilization contraceptive “morning after” pill – available over the counter (OTC) rather than by prescription to individuals under… Continue Reading
11th Circuit Holds Labor Department Has No Authority to Issue H-2B Rules
Posted in Agency Authority, Judicial Review & Remedies, Regulatory ProcessToday the United States Court of Appeals for the Eleventh Circuit affirmed the decision of the United States District Court for the Northern District of Florida enjoining the Department of Labor (DOL) from enforcing its non-immigrant non-agricultural unskilled labor visa program (H-2B) in Bayou Lawn and Landscape Services v. Solis. The court found that the… Continue Reading
More Alien Worker Wage Rules Vacated under APA: What H-2B Rules Apply?
Posted in Agency Authority, Judicial Review & Remedies, Regulatory ProcessWhile much attention in the immigration arena has focused on a new employment verification document, the potentially rapid filling of the professional employees (H-1B) temporary visa quota, and the apparent conflict over determining wage rates for foreign workers that may be stalling Senate negotiators, wage methodology for the unskilled workers temporary visa category (H-2B) is… Continue Reading
Monday Morning Regulatory Review – 3/11/13
Posted in Agency Authority, Regulatory ProcessForgive the absence – surprisingly little to report over the past two weeks. The Office of Management and Budget maintained a relatively stable docket with no truly significant rules being submitted or completed. One might attribute this lull to sequestration – fears and realities – but it remains a question. Congress may be tied up… Continue Reading
The Need to Know About Executive Orders: Much Ado About … Cybersecurity
Posted in Agency Authority, Constitutional Issues in Regulations“Executive Orders” will never be confused with Shakespeare, but they are often worth reading for political theater. The real question is not their literary or entertainment value, but what they really do. President Obama’s (aka POTUS) recent Executive Order 13,636: Improving Critical Infrastructure Cybersecurity provides a good example of what an executive order can and… Continue Reading
Monday Morning Regulatory Review – 2/11/13
Posted in Agency Authority, Judicial Review & Remedies, Regulatory ProcessA quiet week in regulations, punctuated by a few interesting events: The United States Court of Appeals for the District of Columbia Circuit vacated the entire definition of “Vented hearth heater” and remanded in part the Department of Energy (DOE)’s ubiquitous Energy Conservation Program rule. The Department of Health and Human Services (HHS) published their… Continue Reading
Monday Morning Regulatory Review – 1/28/13
Posted in Agency Authority, Executive - OMB Review, Judicial Review & RemediesA short week after the Inaugural Holiday (reaffirming that the Republic works) may have slowed publication of rules slightly, but the courts were in full swing. In addition to finding that the recess appointments to the National Labor Relations Board (NLRB) were unconstitutional and void, which drew the lion’s share of attention, the United States… Continue Reading
Conflicting Decisions on Delegated Rulemaking Authority: the Uncertain Fate of H-2B Regulations
Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Review & RemediesA new decision in Louisiana Forestry Assn. v. Solis upheld the Department of Labor (DOL) Wage Methodology for the Temporary Non-agricultural Employment H-2B Program, adding another piece to a confusing jigsaw puzzle over the efficacy of the H-2B regulations. District Court decisions upholding regulations normally do not garner major attention by this blog because there… Continue Reading
D.C. Circuit Vacates EPA “Cross-State” Air Pollution Rule: Exceeds Statutory Authority
Posted in Agency Authority, Judicial Review & RemediesIn a major setback to the Obama Administration, the United States Court of Appeals for the District of Columbia Circuit today vacated the Environmental Protection Agency (EPA)’s “Cross-State” or “Transport” Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals final rule because EPA yet again exceeded its statutory… Continue Reading
EPA Exceeds Authority in Clean Water Act “Guidance” for Surface Mining
Posted in Agency Authority, Judicial Review & RemediesThe United States District Court for the District of Columbia struck down the Environmental Protection Agency (EPA) Final Guidance Improving EPA Review of Appalachian Surface Coal Mining Operations Under the Clean Water Act, National Environmental Policy Act, and the Environmental Justice Executive Order on July 31st. The complicated decision in National Mining Association v. Jackson… Continue Reading