• 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…

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  • Judicial Review & Remedies

    NLRB Posting Rule Enforcement Provisions Struck Down

    The U.S. District Court in D.C. (Judge Jackson) invalidated provisions of the NLRB’s “posting rule” that (1) made an employer’s failure to display NLRB-provided posters to be an unfair labor practice, and (2) would toll the statute of limitations in unfair labor practice actions against employers who have failed to display the posters.  These provisions violated the National Labor Relations Act (NLRA), and, therefore, the Administrative Procedure Act (APA).  The NLRB simply overstepped the bounds of its authorizing statute. The Case.  The National Association of Manufacturers (NAM), the National Right to Work Legal Defense and Education Foundation (NRTW), and others sued to enjoin implementation of the NRLB’s 2011 rule that would require employers to…

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