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Category Archives: Constitutional Issues in Regulations

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Monday Morning Regulatory Review – 11/21/16: Persuader Rule Set Aside; Nursing Home Arbitration Bar Enjoined; Executive Immigration Action Litigation Postponed; Agency Authority Retread & Final Regulatory Agenda

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

Several regulatory highlights from the last week illustrate the more forthright and subtle aspects of the transition from one Administration to the next.  A judgment in one district court probably sounded the death knell for a major labor regulation while another district court enjoined a regulation barring arbitration clauses.  Judgment and discretion were displayed in… Continue Reading

Monday Morning Regulatory Review – 11/7/16: SCOTUS Grants New Regulatory Preemption Case

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

The United States Supreme Court (SCOTUS) added another administrative law case to its argument docket on Friday, granting certiorari in Coventry Health Care of Missouri v. Nevils (SCOTUSblog case page), a case of whether deference is due a regulatory interpretation of a statute that preempts State law.  The issues present an opportunity for clarification of… Continue Reading

Monday Morning Regulatory Review – 10/31/16: Sex, Identity, Statute, Regulation, and Guidance; Blacklist Blacklisted; Wellness Complaint & Education Borrowers Defenses

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

Four highlights in regulatory practice from the past week present diverse but overlapping issues.  The United States Supreme Court (SCOTUS) granted review in a case that may or may not have significant regulatory implications, but certainly contains drama.  Another Administration priority of enforcing its preferences through procurement contracts was enjoined, setting the stage for a… Continue Reading

Monday Morning Regulatory Review – 10/17/16: Mortgage Lending Enforcement Failure; Labor Complaints Contract Clause & Pipeline Emergency Confusion

Posted in Constitutional Issues in Regulations, Judicial Review & Remedies, Regulatory Process

A major loss for the Administration’s policy occurred last week in the failure of a most significant enforcement of post-mortgage-crisis legislation, but not in the organic constitutional way that garnered much attention, but rather in the field of specific rights and administrative law.  A new challenge was filed to another Administration signature regulation – in… Continue Reading

Monday Morning Regulatory Review – 8/8/16: Political Free Speech; Tax Preparers End & Intercircuit Nonacquiescence and Consistency

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Process, Judicial Review & Remedies

Three highlights from the past week in regulatory practice:  One court of appeals found that an agency regulation likely violated a plaintiffs’ rights to free speech as applied and remanded for the district court to enter a preliminary injunction.  A district court brought the long-running competition over preparing tax forms one step closer to resolution… Continue Reading

Monday Morning Regulatory Review – 7/4/16: Agency Exceeds Authority in Limiting Obamacare Exceptions; Second Persuader Challenge Persuaded; Conviction Guidance as Final Agency Action & Regulatory Deck-Clearing

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Process, Regulatory Flexibility & Small Business

Independence Day – a day to celebrate the right to choose between praising or criticizing the administrative state – or both.  Several courts took exception from Administration regulatory actions in the past week, including a regulation that exceeded the agency’s authority, a regulation that likely failed to comport with a number of superior requirements, and… Continue Reading

Monday Morning Regulatory Review – 6/13/16: Records Inspection as Unreasonable Search; Union Election Rule Litigation Demise; Statutes or Regulation Compliance Discipline; Regulation-Sensitive Incentive Based Compensation; Commodity Derivative Swaps & Regulatory Flexibility Plans

Posted in Constitutional Issues in Regulations, Judicial Review & Remedies, Regulatory Flexibility & Small Business

Esoterica seem to dominate regulatory practice last week.  Structure and compliance issues dominated regulatory litigation highlights with the demise of an inspection regulation for violation of constitutional standards, the affirmance of another rule against facial attack rather than as applied attack, and discipline of an official for refusal to violate a regulation.  In agency proposals,… Continue Reading

Monday Morning Regulatory Review – 6/6/16: Warning Letter Finality; Untrusted Fiduciary Rule Tested; Great Lakes Pilotage Foundering; Oyster Illness Hazard Petition Grounding & Payday Loans Proposal Interest

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Review & Remedies, Regulatory Flexibility & Small Business

The United States Supreme Court (SCOTUS) decision in United States Army Corps of Engineers v. Hawkes Co. last Monday reverberated on Friday in United States Court of Appeals for the District of Columbia Circuit in dynamic Fair Labor Standards Act (FLSA) litigation.  In two different district courts, expected litigation challenged another Department of Labor (DOL)… Continue Reading

SCOTUS Affirms “Waters of the United States” Jurisdictional Determination is Final Agency Action Subject to Judicial Review

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Review & Remedies, Regulatory Process

The United States Supreme Court (SCOTUS) today unanimously (with concurrences) held that in United States Army Corps of Engineers v. Hawkes Co., Inc. that the Armey Corps of Engineers’ decision to assert Clean Water Act (CWA) jurisdiction over a parcel of land is a final agency action subject to judicial review under the Administrative Procedure… Continue Reading

SCOTUS Warns Concrete Injury Needed to Enforce Statutory Rights

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

The United States Supreme Court (SCOTUS) today returned the critical case of Spokeo, Inc. v. Robins to the United States Court of Appeals for the Ninth Circuit to decide whether plaintiff Robins had established a concrete injury.  While Spokeo resonates deeply in the class action milieu, but it serves also as a warning that Article… Continue Reading

Monday Morning Regulatory Review – 5/16/16: Deeming Rule & Litigation; Safety and Health Electronic Recordkeeping; Reconstructed or Modified Methane; Transgender Accommodations Guidance; & Conflicting Disability Compliance

Posted in Agency Authority, Constitutional Issues in Regulations, Executive - OMB Review, Judicial Process, Regulatory Flexibility & Small Business, Regulatory Process

Highlights with no surprises in regulatory practice last week focused on the rush to complete regulatory actions.  The Administration issued the controversial tobacco “deeming rule” and a vaping manufacturer immediately sued.  A new electronic reporting requirement must be challenged in affirmative pre-enforcement litigation because the underlying statute may bar challenges to the regulations in defensive… Continue Reading

Monday Morning Regulatory Review – 5/2/16: Amtrak’s Regulatory Derailment; Blowout Prevention; Dodd-Frank Long Cleanup; State and Local Internet Nondiscrimination & Reginfo Missing Again

Posted in Agency Authority, Constitutional Issues in Regulations, Executive - OMB Review, Judicial Review & Remedies

Highlights in regulatory practice last week included an arcane railroad timetable management train wreck may have complicated the authority of a number of different government-related organizations.  The Department of the Interior (DOI) finally published its major response to the Deepwater Horizon, but with risks.  Less risky, though not with élan or elegance, the Consumer Financial… Continue Reading

Monday Morning Regulatory Review – 4/11/16: Corporate Inversions Ruled Out; Untrusted Fiduciary Rule; Sanitary Transport; Silica Suits & Agency Authority Constitutional Challenge

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Review & Remedies, Regulatory Process

The Administration fully engaged in institutionalizing its policies through promulgated rules with the Employee Benefits Security Administration (EBSA), the Internal Revenue Service (IRS), and the Food and Drug Administration (FDA) all publishing economically significant final rules this week.  Petitions for review challenged the Occupational Safety and Health Administration (OSHA)’s crystalline silica rule as expected.  In… Continue Reading

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

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

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… Continue Reading

Monday Morning Regulatory Review – 7/20/15: More WOTUS Litigation; Contraceptive Coverage Uncovered & Employee / Independent Contractor Guidance

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Review & Remedies, Regulatory Process

As Washington swelters, the regulatory docket remains relatively cool. Among last week’s highlights, litigants further challenged the regulatory jurisdictional definition of “Waters of the United States” and the current, now published final iteration of Obamacare contraceptive coverage rules generate more issues for potential litigation. On a less-than-regulatory front, new guidance on the distinction between employees… Continue Reading

SCOTUS Orders Just Compensation for a Regulatory Taking: Agency Regulations Could Endanger the Public Fisc

Posted in Constitutional Issues in Regulations

The United States Supreme Court (SCOTUS) today ruled in Horne v. Department of Agriculture that the government must give just compensation for personal property actually taken in agency price support programs. Horne clarifies how the United States Constitution’s “Just Compensation” or “Takings” clause limits one regulatory program. Future litigation applying Horne’s teachings to other agency… Continue Reading

Monday Morning Regulatory Review – 5/4/15: SCOTUS Statutory Standing; Emergency Generators; & H-2B Regulations Again

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

Three unrelated highlights from last week in regulatory practice: The United States Supreme Court (SCOTUS) agreed last Monday to consider a case of private causes of action that has potentially stunning constitutional and regulatory implications. The United States Court of Appeals for the District of Columbia Circuit “reversed” an Environmental Protection Agency (EPA) regulation that… Continue Reading

Monday Morning Regulatory Review – 4/6/15: Cyber-Threat Executive Order; NLRB Elections Rule; Drones & Privacy; and Confined Spaces in Construction

Posted in Agency Authority, Constitutional Issues in Regulations, Executive - OMB Review, Judicial Review & Remedies

Issues on the periphery of regulatory practice highlighted the last week. The President of the United States (POTUS) unleashed financial regulation resources against cyber-threats by applying regulations and enforcement processes that have historically been used to combat foreign regimes, terrorists, international narcotics traffickers, and the proliferation of weapons of mass destruction. On the other hand,… Continue Reading

Monday Morning Regulatory Review – 3/30/15: Open Internet Randomness to the Courthouse; State / Local Internet Preemption; Immigration Executive Action Litigation VI; Same-Sex Family Medical Leave Regulations Preliminary Injunction; Fuel Cells & Airplanes

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Process, Judicial Review & Remedies

Litigation and agency responses dominate last week’s regulatory practice. Two different protective petitions for review of the Federal Communication Commission (FCC)’s open internet / net neutrality / net utility final rules were filed with the United States Court of Appeals for the District of Columbia Circuit and the Fifth Circuit, and a State challenged the… Continue Reading

Monday Morning Regulatory Review – 3/16/15: Functional Delegation Test; Open Internet Neutrality Rule Opened; Immigration Executive Action Litigation V

Posted in Constitutional Issues in Regulations, Judicial Process, Judicial Review & Remedies, Regulatory Process

Three regulatory highlights for the past week do not appear to have any discernable connections. The United States Supreme Court (SCOTUS) disappointed (or maybe disowned) a cousin of the constitutional nondelegation doctrine by reversing and remanding a case limited to the regulatory power of a unique government corporation – Amtrak. The Federal Communications Commission (FCC)… Continue Reading

Monday Morning Regulatory Review – 2/9/15: Net Neutrality Utility; Statutory Supplements & Foreign Religious Workers; and Regulatory Reform Redux

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Review & Remedies, Legislation, Regulatory Process

Interesting regulatory events of the past week come from all three branches of the United States Government.  From the independent Federal Communications Commission (FCC), the Chairman signaled his proposed way forward on the issue of “net neutrality” that could become a significant regulatory morass.  A district court vacated several provisions of immigration regulations in the… Continue Reading

Monday Morning Regulatory Review – 1/19/15: Judicial Review of Agency Standards of Discretion; Regulatory Takings Standards; FLSA Home Care Regulations II; NLRB Elections Rule Litigation IIA; Be Sued & Settle

Posted in Constitutional Issues in Regulations, Judicial Process, Judicial Review & Remedies, Regulatory Process

The United States Supreme Court (SCOTUS) granted review in several cases with significant regulatory implications last Friday – neither of which is the case that has drawn all the press attention and both of which should be decided early this summer.  In one case, SCOTUS may be approaching the twilight zone of judicial review of… Continue Reading

Monday Morning Regulatory Review – 11/24/14: POTUS Immigration Reform; Obamacare Subsidies Docket Clearing; Conflict Minerals Redux; Drones Predux; Renewable Fuel Standards Exdux; and Unified Agenda

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Process, Judicial Review & Remedies, Regulatory Process

President Obama (POTUS) finally moved last week to alter immigration policy by signing an executive order and issuing two memoranda, and amid all the political debate over the action, some legal questions need serious answers.  Also last week, several docket changes helped clear different regulatory issues to be ultimately decided by the United States Supreme… Continue Reading

Monday Morning Regulatory Review – 9/29/14: SCOTUS 2014 Term Preview

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

Rather than looking back to last week, this edition of the Monday Morning Regulatory Review focuses on the United States Supreme Court (SCOTUS) return to the conference room this morning, and to the bench on October 6, after a three-month flextime / flexplace schedule.  SCOTUS will take up a number of critical regulatory and administrative… Continue Reading