• Agency Authority,  Constitutional Issues in Regulations,  Judicial Review & Remedies

    Monday Morning Regulatory Review – 8/24/15: Conflict Minerals Demise; Home Health Care Reversal & Ministerial Removal

    Three completely different and unrelated regulatory events in the past week deserve attention. A confluence of coincidences last Tuesday illustrated the First Amendment to the United States Constitution limits on symbolic rather than functional regulation. At the same time, changed facts and a changed industry justify a change in regulation. Finally, some rules are purely ministerial, but provide an important lesson nonetheless. Conflict Minerals Demise: First, a panel of the United States Court of Appeals for the District of Columbia Circuit reaffirmed its prior decision vacating the Securities and Exchange Commission (SEC) Conflict Minerals final rule violated the First Amendment of the United States Constitution. Second, Governmental Accountability Office (GAO) reported on…

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  • Agency Authority,  Constitutional Issues in Regulations

    SCOTUS Holds Obama Made Unconstitutional NLRB Recess Appointments – Regulations and Adjudications at Risk

    The United States Supreme Court (SCOTUS), in NLRB v. Noel Canning,  today affirmed the United States Court of Appeals for the District of Columbia decision that President Obama (POTUS) unconstitutionally appointed members of the National Labor Relations Board (NLRB) as “recess appointments” when the Senate was not in recess.  SCOTUS unanimously affirmed on narrower grounds than the D.C. Circuit decision, and requires POTUS to respect the Senate’s prerogative to hold pro forma sessions every three days – a longer recess is required.  Much of the impact of this decision may have already been mitigated, but the potential damage to a substantial regulatory program remains – and will likely be the subject…

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  • Agency Authority,  Constitutional Issues in Regulations,  Regulatory Process

    D.C. Circuit Vacates Dodd-Frank Conflict Minerals Provision & SEC Rule as Violating First Amendment Free Speech

    The United States Court of Appeals for the District of Columbia today, in National Association of Manufacturers v. SEC, affirmed a district court judgment that the Securities and Exchange Commission (SEC) did not violate procedural requirements or misconstrue the statute in promulgating the Conflict Minerals Rule, but vacated the specific underlying statutory provision and the rule because the requirements compelled speech in violation of the First Amendment to the United States Constitution.  Compelling reporting, disclosure, and publication to the extent that entails “compelled speech” pose a distinct constitutional limitation on both statutes and rulemaking under statutes.  Agencies must consider carefully this developing caselaw in formulating any reporting requirement that will be publicly…

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  • Agency Authority,  Judicial Process,  Judicial Review & Remedies

    Monday Morning Regulatory Review – 12/30/13: Obamacare Fractal Geography; Volcker Rule Stay & Reconsideration; OSHA Interpretations & Ripeness; and Rearview Mirrors & Cameras

    The final week of 2013 does not go gently into that good night, with four unrelated but significant issues.  Obamacare further disintegrated as a nationwide legal program with further administrative exceptions and delays and piecemeal judicial bars to enforcement that have worn out their welcome.  The Volcker Rule still awaits publication in the Federal Register, but a petition for review and emergency stay request may have resulted in reconsideration.  An Occupational Safety and Health Administration (OSHA) interpretive rule can remain in effect even though the rule is contrary to the underlying statute.  And finally, a long awaited costly Department of Transportation (DOT) vehicle safety rule emerges on a new docket. Obamacare…

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  • Agency Authority,  Judicial Review & Remedies,  Regulatory Process

    11th Circuit Holds Labor Department Has No Authority to Issue H-2B Rules

    Today 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 district court did not abuse its discretion in entering the preliminary injunction and affirmed de novo the district court’s interpretation of the law.  This case is mostly over – the preliminary injunction remains in effect through determination of the case, but the district court and the court of appeals have already determined the ultimate issue of…

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