Header graphic for print
Federal Regulations Advisor Insight and Commentary on U.S. Government Regulatory Affairs

Tag Archives: statutory interpretation

Monday Morning Regulatory Review – 4/10/17: Gorsuch to SCOTUS while SCOTUS Denies WOTUS Abeyance; Implementing Regulatory Reform Memorandum & Administrator Nominee; and Plain Snakes Not InterSTATE Shipments

Posted in Judicial Process, Regulatory Process

Unsurprising, the Senate confirmed a new Justice last Friday while the United States Supreme Court (SCOTUS) he is about to join continued adjudicating a minimal regulatory law docket, at least rejecting the notion that it should stay one case where the new Administration seeks to modify the underlying rule.  At the other end of Pennsylvania… 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 – 10/12/15: WOTUS Stayed Nationwide & Vacatur Remedies – Shepherds Wages or Optional Practical Training

Posted in Judicial Process, Judicial Review & Remedies

Regulatory practice events of the past week focused on judicial review and agency response. On one hand, the Administration lost a major skirmish in the tangled litigation over the regulatory definition of waters of the United States. On the other hand, two interim regulatory events illustrate the effect of judicial delayed vacatur orders and agency… Continue Reading

Monday Morning Regulatory Review – 11/17/14: Obamacare Subsidies Docket; Obamacare 2nd Contraceptives Accommodation & SCOTUS Criminal / Administrative Deference Invitation

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

Last week focused on appellate practice, notably cases related to but not necessarily before, the United States Supreme Court (SCOTUS).  The United States Court of Appeals for the District of Columbia Circuit delayed further consideration of the issue of whether the Internal Revenue Service (IRS) could interpret the Obamacare (Patient Protection and Affordable Care Act… Continue Reading

Monday Morning Regulatory Review – 6/23/14: Air Passenger Fees; Electric Generating Carbon Emissions; SCOTUS Zenith

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

A short review of significant odds and ends from last week will be overshadowed by major decisions this week.  Among the significant odds and ends, the Department of Homeland Security (DHS) Transportation Security Administration (TSA) promulgated an increase in air passenger security fees under statutory authority to do so without advance notice and comment, but… Continue Reading

D.C. Circuit Vacates Dodd-Frank Conflict Minerals Provision & SEC Rule as Violating First Amendment Free Speech

Posted in Agency Authority, Constitutional Issues in Regulations, Regulatory Process

The United States Court of Appeals for the District of Columbia today, in National Association of Manufacturers v. SEC, affirmed a district court judgment that the Securities and Exchange Commission (SEC) did not violate procedural requirements or misconstrue the statute in promulgating the Conflict Minerals Rule, but vacated the specific underlying statutory provision and the… 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

Greenhouse Gases – Statutory Construction & the Length of Regulatory Logic

Posted in Agency Authority, Judicial Review & Remedies

The United States Supreme Court (SCOTUS) yesterday granted review in six greenhouse gas cases, consolidated them all into one, and posited its own question for argument:  “Whether [the Environmental Protection Agency (EPA)] permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary… Continue Reading

Monday Morning Regulatory Review – 7/15/13

Posted in Judicial Review & Remedies, Regulatory Process

It’s vacation time in Washington and elswwhere.  Four events last week are guaranteed not to provide good beach reading:  The Office of Management and Budget (OMB) released a Unified Agenda of planned regulatory actions and, of more immediate concern, the Federal Aviation Administration released its 1500 hour rule in the wake of Asiana 214’s tailhook… 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

NLRB Posting Rule II: Posting Rule Exceeded Authority under NLRA

Posted in Judicial Process, Judicial Review & Remedies

In a second blow to the National Labor Relations Board (NLRB) Posting Rule, the United States District Court for South Carolina has held that the NLRB violated the Administrative Procedure Act (APA) when it promulgated a rule without statutory authority requiring employers to display an NLRB-created poster.  Chamber of Commerce v. NLRB.  As previously discussed… Continue Reading

Clean Air Act and APA Effective Date Stays: Sierra Club v. Jackson – again

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

The EPA’s Clean Air Act (CAA) rules may become effective in short order, imposing major new requirements on industry: National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters (Boiler Rule) and Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and… Continue Reading