• Executive - OMB Review,  Judicial Review & Remedies,  Regulatory Process

    Monday Morning Regulatory Review – 2/22/16: Drone Litigation; COOL Removal & Passenger Screening

    A holiday-shortened week in regulatory practice found new challenges to drone regulations highlighting some of the peculiarities of regulations attempting to catch up with reality. The demise of authority for country of origin labeling regulations caused its originating agency to submit a new rule for interagency and executive review. Completing review of passenger screening rules may, on the other hand, end litigation. Drone Litigation: Several parties commenced litigation challenging the Department of Transportation (DOT) Federal Aviation Administration (FAA) Registration and Marking Requirements for Small Unmanned Aircraft (sAUS or drone) rule over the past few weeks. TechFreedom v. FAA, D.C. Cir. No. 16-1062, for example, suggests in its petition for review (PFR) that the…

    Comments Off on Monday Morning Regulatory Review – 2/22/16: Drone Litigation; COOL Removal & Passenger Screening
  • Judicial Process,  Judicial Review & Remedies,  Regulatory Process

    Monday Morning Regulatory Review – 11/23/15: Immigration Executive Action Petition; Electric MATS Appropriate and Necessary Finding; Pollutant Good Neighbors; Airport Passenger Screening; & Unified Agenda Expectations

    The Administration, unsurprisingly but nonetheless most significantly, petitioned the United States Supreme Court (SCOTUS) to review the continuing preliminary injunction against part of the Department of Homeland Security (DHS) not-a-regulation immigration executive action. On the other hand, the Environmental Protection Agency (EPA) responded to a not-yet remand and a remand of different rules. DHS took a further step in trying to resolve the regulatory problem of advanced imaging technology in airport screening. Finally, all of this has or may appear in the “book of expectations” in the latest Unified Agenda. Immigration Executive Action Petition: The Department of Justice (DOJ) petitioned SCOTUS last Friday to review the United States Court of Appeals for the…

    Comments Off on Monday Morning Regulatory Review – 11/23/15: Immigration Executive Action Petition; Electric MATS Appropriate and Necessary Finding; Pollutant Good Neighbors; Airport Passenger Screening; & Unified Agenda Expectations
  • 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…

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

    Comments Off on 11th Circuit Holds Labor Department Has No Authority to Issue H-2B Rules
  • Regulatory Process

    Regulations and Something Else 3: DHS “DREAM” Announcement Raises Many Administrative Law Questions

    The Department of Homeland Security (DHS) this week joined the political campaign headlines by announcing that it will, by policy memorandum, defer enforcement (i.e. removal) for certain aliens who were brought to the United States as children, and “accept applications to determine whether” they qualify for authorization to work in the United States.  Rhetoric and constitutional authority issues aside for the moment, DHS leaves many administrative law issues unanswered.  The announcement is the Administration’s response to Congress’ failure to pass a “DREAM Act” to allow children brought to the United States without visas or inspection to gain some immigration status.  DHS’s announcement could be a blanket or “rule” decision, or merely an enforcement priority…

    Comments Off on Regulations and Something Else 3: DHS “DREAM” Announcement Raises Many Administrative Law Questions