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

Tag Archives: Supreme Court

Monday Morning Regulatory Review – 11/4/13

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

Obamacare (the Patient Protection and Affordable Care Act or PPACA) remained in the spotlight last week with visible website problems and individual non-conforming insurance policy cancellations, but here the issues are more distinct:  the growing intercircuit conflict over the contraceptives mandate under the Religious Freedom Restoration Act (RFRA), and adoption of a new “hardship” exemption… Continue Reading

Monday Morning Regulatory Review – 7/22/13

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

Two recent cases of interest deserve at least a summary review – the vacation of an Environmental Protection Agency (EPA) rule that deferred regulation and permitting of some carbon dioxide emissions in scientific uncertainty and rejection of a Securities and Exchange Commission (SEC) rule on whistleblowers in private litigation.  In response to litigation and Congressional… 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

D.C. Circuit finds “Recess Appointments” Invalid: NLRB Lacked Quorum

Posted in Constitutional Issues in Regulations

The United States Court of Appeals for the District of Columbia Circuit ruled today that the National Labor Relations Board (NLRB) lacked a quorum to act in Noel Canning v. NLRB because three Presidential “recess” appointments were invalid.  The court found that the United States Senate was not in “the” recess contemplated by the United… Continue Reading

Monday Morning Regulatory Review – 1/21/13

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

This past week saw the January thaw from the holidays in regulatory movement.  The Office of Management and Budget (OMB) Office of Information and Regulatory Affairs (OIRA) completed review on a number of substantial (if not economically significant) regulations, from arms exports to domestic gun control, and health care privacy.  The Consumer Finance Protection Bureau… 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

Monday Morning Regulatory Review – 11/5/12

Posted in Judicial Review & Remedies, Regulatory Process

The election is tomorrow and regulatory activity seems to be in the calm before the storm.  Congress further pressured the Administration on the lack of a Unified Agenda, but the Office of Management and Budget (OMB) did complete review on some very time-sensitive regulations, while the Environmental Protection Agency (EPA) announced at least some compliance… Continue Reading

Justice’s Long March: Updating Alcohol, Tobacco, Firearms, and Explosives Regulations

Posted in Regulatory Process

No regulation lasts forever – its viability is constantly challenged, and its environment constantly changes and is influenced by new statutes, judicial decisions, other regulations, and second looks.  The Department of Justice (DOJ) provides two good examples in Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) regulations, but with issues.  The rules alter nonimmigrant alien… Continue Reading

DOJ’s “Departure Bar” Regulation to Reopening Immigration Cases: Another Circuit, Another Loss

Posted in Judicial Review & Remedies

The United States Court of Appeals for the Eleventh Circuit joined several other circuits in holding contrary to statute a Department of Justice (DOJ) regulation divesting the Board of Immigration Appeals (BIA) of jurisdiction when an alien leaves the United States in Lin v. U.S. Attorney General.  The Eleventh Circuit found that the “Departure Bar”… Continue Reading

Clear Statutes & Unforeseen Circumstances: The Danger of Overreach

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

The United States District Court for the District of Columbia has invalidated the Federal Election Commission (FEC) electioneering contributor disclosure limitations, or campaign donor advertising, regulations.  The court found that statutory rulemaking delegation did not authorize the FEC to promulgate rules to respond to changes occasioned by Supreme Court decisions that parts of the statute… Continue Reading

Interpreting Regulations During Litigation: Rethinking Agency Deference II

Posted in Judicial Review & Remedies

The Supreme Court may consider anew whether courts should defer to an agency’s interpretation of its regulations in friend of the court (amicus curiae) briefs.  The Labor Department’s (DOL) interpretation of Fair Labor Standards Act’s (FLSA) “outside sales exemption” from overtime pay, and related regulations, is the focus of Christopher v. SmithKline Beecham.  DOL’s interpretation… Continue Reading

Changing Regulations During Litigation: Rethinking Agency Deference I

Posted in Judicial Review & Remedies

Well, at the time that the 2009 regulation was promulgated … we had lost cases in two courts of appeals. – Deputy Solicitor General Malcolm Stewart, before the Supreme Court in United States v. Home Concrete and Supply, LLC, January 17, 2012. Alan Horowitz (Miller & Chevalier) suggested that Home Concrete asked whether the Supreme… Continue Reading