Regulatory practice remains in a curious near-catatonic state two months after the inauguration of a new Administration. Legislation is amputating prior rules, almost no affirmative regulatory activity is noticeable, and judicial review has slowed markedly while awaiting the Administrative to state of its intentions. Doctrinal development has all but ceased for the time being.
The Administration attempts to move toward a normal flow in the regulatory process as the docket thaws ever so slightly and it instructs agencies on the process of establishing their regulatory agendas. Old regulations, however, sometimes die ignominious deaths, such as removal from the Code of Federal Regulations after vacatur, while others fate is so… Continue Reading
The United States Supreme Court (SCOTUS) added to its argument calendar Friday, including several that could implicate future regulatory practice – including jurisdiction to review regulations and the potential scope of arbitration-limiting regulations. In lesser lights, a Court of Appeals determined that an agency’s interpretation was correct without the agency, while a district court imposed… Continue Reading
With the 30-day deadline for making rules effecting during the current Administration fast approaching (Wednesday), agencies took a number of actions that raise concerns – or at least perceived concerns. One final rule challenges a court determination of the agency’s authority, while another agency took pains to adopt an interim rule on a not-very-controversial subject. … Continue Reading
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
For some reason, today seems to be Labor Day – that is, all of the significant actions we cover deal with the regulation of employment of some type. Today focuses on two rules of general applicability and three rules dealing with employment requirements of government contractors. The United States Supreme Court (SCOTUS) surprised many with… Continue Reading
The term “economically significant” has a distinct meaning in the regulatory process and is the source of much angst for agencies and regulated industries. “Economically significant” is not a legal term, however, but a management term – one of several thresholds for triggering review of a proposed or final rule by the Office of Management… Continue Reading
“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