This 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
Category Archives: Constitutional Issues in Regulations
Subscribe to Constitutional Issues in Regulations RSS FeedMonday 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
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
Monday Morning Regulatory Review – 3/18/13
Posted in Constitutional Issues in Regulations, Executive - OMB Review, Judicial Review & RemediesThe regulatory process thawed last week in the Executive and Judicial Branches. Among the highlights, the simmering Recess Appointments Clause issue facing the National Labor Relations Board (NLRB) will head to the United States Supreme Court (SCOTUS) while many enforcement cases are being held in abeyance and uncertainty surrounds many rules. The United States Court… Continue Reading
Monday Morning Regulatory Review – 2/25/13
Posted in Constitutional Issues in Regulations, Judicial Review & RemediesLitigation over President Obama’s recess appointments took several additional steps last week and few significant rules were published. One rule worth noting is a Department of Health and Human Services (HHS) follow-up final rule establishing standards for essential health benefits under the Patient Protection and Affordable Care Act. Two Department of Labor cases also deserve… 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 – 2/18/13
Posted in Constitutional Issues in Regulations, Executive - OMB Review, Regulatory ProcessThe Consumer Finance Protection Bureau (CFPB), along with some cohorts, published a flurry of four final rules last week that will give banking and mortgage attorneys plenty to read and absorb – and consider anew whether the CFPB can legitimately issue these rules. Adding a little fuel to the Noel Canning fire, a House of… Continue Reading
D.C. Circuit finds “Recess Appointments” Invalid: NLRB Lacked Quorum
Posted in Constitutional Issues in RegulationsThe United States Court of Appeals for the District of Columbia Circuit ruled today that the National Labor Relations Board (NLRB) lacked a quorum to act in Noel Canning v. NLRB because three Presidential “recess” appointments were invalid. The court found that the United States Senate was not in “the” recess contemplated by the United… Continue Reading
Monday Morning Regulatory Review – 10/22/12
Posted in Constitutional Issues in Regulations, Judicial Review & Remedies, Regulatory ProcessThe cupboard is getting bare as we approach the election. The Office of Management and Budget (OMB) completed review on no (“0”) proposed or final rules last week, but at least the Department of the Treasury (DOTr) updated its Iranian assets blocking regulations and Department of Health and Human Services (HHS) submitted its calendar year… Continue Reading
Monday Morning Regulatory Review – 8/27/12
Posted in Constitutional Issues in Regulations, Judicial Process, Judicial Review & Remedies, Regulatory ProcessThe Department of Health and Human Services (HHS) dominated last week. The United States Court of Appeals for the District of Columbia Circuit affirmed the District Court in two cases of note: upholding HHS’s revised embryonic stem cell research rules and striking down HHS’s tobacco packaging rules – which will be the subjects of future… 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
Rule-Related Limits in Appropriations: A Viable Congressional Review Act
Posted in Constitutional Issues in Regulations, LegislationIlyse Schuman recently reported in the Employment Law Update that the House Appropriations Committee had approved FY2013 funding, and filed a report, for the Equal Employment Opportunity Commission (EEOC). She focused on the catch that “none of the funds made available in this Act” can be used to implement the EEOC’s Disparate Impact and Reasonable… Continue Reading
Clear Statutes & Unforeseen Circumstances: The Danger of Overreach
Posted in Constitutional Issues in Regulations, Judicial Review & Remedies, LegislationThe United States District Court for the District of Columbia has invalidated the Federal Election Commission (FEC) electioneering contributor disclosure limitations, or campaign donor advertising, regulations. The court found that statutory rulemaking delegation did not authorize the FEC to promulgate rules to respond to changes occasioned by Supreme Court decisions that parts of the statute… Continue Reading
Petitioning for Rulemaking: As Slippery as Mercury (or Thimerosal)
Posted in Constitutional Issues in Regulations, Judicial Process, Regulatory ProcessPetitioning for rulemaking may not be judicially reviewable unless the petitioner takes great care in drafting their petition. I was reminded of this core issue by the D.C. Circuit’s decision in Coalition for Mercury-Free Drugs, Inc. v. Sebelius, where plaintiffs petitioned and then sued the FDA to remove mercury (or thimerosal) from vaccines. At bottom,… Continue Reading