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Tag Archives: Solicitor General

Immediate Intercircuit Conflict: 4th Circuit Upholds IRS Obamacare Regulations Extending Tax Subsidies to Federal Exchanges

Posted in Agency Authority, Judicial Review & Remedies

On this, the same day as the D.C. Circuit decision in Halbig v. Burwell, the United States Court of Appeals for the Fourth Circuit took the opposite tack in King v. Burwell: finding that the provisions of Obamacare (Patient Protection and Affordable Care Act or PPACA), taken together, were ambiguous, and apply Chevron Step 2… Continue Reading

SCOTUS: Obamacare Contraceptive Rule Failed to Accommodate Corporate Owner’s Religious Rights

Posted in Judicial Review & Remedies, Regulatory Process

The United States Supreme Court (SCOTUS) today required the Obama Administration to implement Obamacare (Patient Protection and Affordable Care Act or PPACA) and it’s regulations to permit closely held corporations to decline to purchase preventative or contraceptive health care coverage that would violate their owners’ religious beliefs in Burwell v. Hobby Lobby.  SCOTUS found that… Continue Reading

SCOTUS to Review D.C. Circuit Constitutional Non-delegation Decision that Amtrak is a Railroad, Not a Regulator

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

The United States Supreme Court (SCOTUS) today granted certiorari in DOT v. Association of American Railroads (U.S. No. 13-1080) to review of a decision of the United States Court of Appeals for the District of Columbia Circuit that Congress unconstitutionally granted Amtrak regulatory authority over its priority of service among railroads.  Such a delegation, according… Continue Reading

Monday Morning Regulatory Review – 6/9/14: Changing Interpretive Rules; Benefit / Cost Analysis Summary; Acronyms & Initializations Caution; and Maintenance Week

Posted in Executive - OMB Review, Judicial Process, Judicial Review & Remedies, Regulatory Process

Today’s review defies categorization, but four significant unrelated events are worth noting.  The United States Supreme Court (SCOTUS) today may grant review in a critical regulatory case raising the necessity of following notice and comment rulemaking for an agency to alter an existing interpretive rule, setting the stage for argument and decision next Term in… Continue Reading

Monday Morning Regulatory Review – 1/27/14: SCOTUS Enjoins Obamacare Preventive Contraception Rule; NLRB Rescinds Vacated Rule; OMB Economically Significant Reviews; and Social Cost of Carbon & Crystalline Silica Extensions

Posted in Judicial Review & Remedies, Regulatory Process

The United States Supreme Court (SCOTUS) last Friday enjoined enforcement of the Department of Health and Human Services (HHS) regulations on preventive contraception minimum regulations under Obamacare against several non-profit organizations in a procedural order that may be a guidepost for future litigation.  Regulatory activity of interest included the National Labor Relations Board (NLRB) best… Continue Reading

Monday Morning Regulatory Review – 1/13/14: Electric Generating Emissions; Demise of the NLRB Posting Rule; Obamacare Regulation by Blog Post; Aircraft Repair Stations Coordination; Unified Agendas & Regulatory Plans

Posted in Agency Authority, Judicial Review & Remedies, Regulatory Process

The beginning of a new year raises several process questions for regulatory practitioners.  The Environmental Protection Agency (EPA) published a new proposed rule to limit emissions from new electric power generators – a rule EPA released several months ago, but only published last week.  The National Labor Relations Board (NLRB) threw in the towel on… Continue Reading

Monday Morning Regulatory Review – 1/6/14: Obamacare @ SCOTUS; Mortgage Disclosure Relief; Wood Burning Stoves; and Firearms & Mental Health

Posted in Judicial Process, Judicial Review & Remedies, Regulatory Flexibility & Small Business

The end of 2013 was hardly quiet, with five notable events worth highlighting.  While this blog has foresworn further coverage of the crenelated litigation in the United States District Courts over the Obamacare contraceptive coverage requirements, one case has moved to an unusual posture before the United States Supreme Court (SCOTUS) though it may not… Continue Reading

Monday Morning Regulatory Review – 12/16/13: Obamacare Deadlines; Labor Elections Rule; Swaps Litigation; Vacating Empty Rules; & the Volcker Rule

Posted in Agency Authority, Judicial Process, Judicial Review & Remedies, Regulatory Process

Regulatory highlights from the past week include the Administration pushing back the deadline for applying for Obamacare and then begging insurance companies for even more time and leniency.  Two independent agencies – the Commodities Futures Trading Commission (CFTC) and the National Labor Relations Board (NLRB) threw in the towel on litigation and proposed new rules… Continue Reading

SCOTUS Grants Review of Obamacare Contraceptive Rule & Religious Freedom Rights

Posted in Constitutional Issues in Regulations, Judicial Review & Remedies

The United States Supreme Court (SCOTUS) announced today that it will hear two cases raising questions of whether the Administration has adequately respected a business owner’s freedom of religion in the Obamacare (Patient Protection and Affordable Care Act or PPACA) regulations when it required that employers provide no cost preventive contraceptive care in employee health… Continue Reading

SCOTUS Argument Review: Sandifer, Changing Clothes, and Sleeping Dogs

Posted in Judicial Review & Remedies, Regulatory Process

Today’s oral argument before the United States Supreme Court (SCOTUS) in Sandifer v. U.S. Steel yielded largely what was expected.  SCOTUS – and the parties – barely touched upon the issue of the Department of Labor (DOL)’s shifting policy on what constitutes changing clothes under the Fair Labor Standards Act (FLSA), and focused their attention… Continue Reading

SCOTUS Argument Preview: Sandifer Interpretation, not Auer Deference

Posted in Agency Authority, Judicial Review & Remedies, Regulatory Process

The United States Supreme Court will hear arguments in Sandifer v. U.S. Steel Corporation next Monday, November 4, 2013, asking the question “What constitutes “changing clothes” within the meaning of Section 203(o) of the Fair Labor Standards Act.”  Why Sandifer matters to administrative law practitioners beyond the presented statutory interpretation issue is not readily apparent. … Continue Reading

SCOTUS Review: Administrative Law Cases in the 2012 Term

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

The United States Supreme Court (SCOTUS) decides a few significant administrative law cases each Term and the Term just concluded was no exception.  Although “administrative law” decisions do not draw the interest of the more volatile constitutional cases that the general press finds so tantalizing, administrative law and related decisions profoundly affect how Americans live… Continue Reading

NLRB Has No Authority for Posting Rule: 4th Circuit Joins D.C. Circuit, with Broader Reasoning that the NLRB Exceeded Statutory Authority

Posted in Agency Authority, Judicial Review & Remedies

The United States Court of Appeals for the Fourth Circuit affirmed a district court judgment that the National Labor Relations Board (NLRB) had no statutory authority to promulgate its Notification of Employee Rights Under the National Labor Relations Act, or “posting rule.”  The Fourth Circuit thus joined the District of Columbia Circuit.  The latest opinion… Continue Reading

Monday Morning Regulatory Review – 5/27/13

Posted in Agency Authority, Judicial Review & Remedies, Regulatory Process

This week, a little more movement toward the Supreme Court resolving the constitutionality of intrasession recess appointments – and the impact on a number of regulations approved by such recess appointees.  A new study outlines to some extent the (environmental) agency practice of being sued by environmental supportive groups and settling on regulatory timing and… Continue Reading

Monday Morning Regulatory Review – 5/20/13

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

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

Monday Morning Regulatory Review – 5/13/13

Posted in Judicial Review & Remedies, Regulatory Process

This week a sprinkling of interesting events flavors administrative law.  Recess appointments litigation may get closer to sweetening the United States Supreme Court (SCOTUS) calendar.  A court decision on timing of electronic filing soured one agency’s day, and provides lessons for others.  Another court fed a bitter pill to the Department of Justice (DOJ) in… Continue Reading

Monday Morning Regulatory Review – 4/29/13

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

Busy 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

Monday Morning Regulatory Review – 3/25/13

Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory Process

The interplay of regulations and litigation came to the fore in a very busy last week, not just in the United States Supreme Court (SCOTUS)’s recent Decker logging road culverts pollution permit decision and the for-profit colleges litigation, but five other matters: The Department of Justice (DOJ) called it quits in defending the Department of… Continue Reading

SCOTUS Reverses 9th Circuit on Logging Road Culverts – New Rule Irrelevant

Posted in Judicial Review & Remedies, Regulatory Process

The Supreme Court of the United States (SCOTUS) today vacated the United States Court of Appeals for the Ninth Circuit decision in Decker v. Northwest Environmental Defense Center, holding that the Environmental Protection Agency (EPA)’s original interpretation of its original regulations warranted Auer deference, that a new EPA rule on the subject did not moot… Continue Reading

Monday Morning Regulatory Review – 3/18/13

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

The 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

APA Circuit Split – Notice and Comment Good Cause Bypass in SORNA Retroactivity Regulations

Posted in Judicial Review & Remedies, Regulatory Process

The United States Court of Appeals for the Third Circuit, on remand from the United States Supreme Court (SCOTUS) in United States v. Reynolds, summarized and joined the complex circuit split on three Administrative Procedure Act (APA) questions applied to the retroactivity of the Sex Offender and Registration Notification Act’s (SORNA) registration requirements.  The first… Continue Reading

2012 Year End Review: Top 10 Most Read Posts & Thoughts for 2013

Posted in Judicial Review & Remedies, Regulatory Process

A year of writing this blog – and 115 … now 116 posts – warrants a traditional end-of-year review and prospective for next year.  For the Federal Regulations Advisor to be useful, it must be responsive to you, its readers. Top 10 Posts:  Popularity is often fickle, skewed toward longevity and against recent posts, but… Continue Reading

Rules and Ripeness: Commitment to Changing Rules During Litigation

Posted in Judicial Process, Judicial Review & Remedies

The United States Court of Appeals for the District of Columbia, in a short order, has held the United States to its word that it will change the Patient Protection and Affordable Care Act rules requiring employers to provide contraceptive services at no cost.  The order in Wheaton College v. Sebelius comes after oral argument… Continue Reading