• 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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