Welcome to Administrative Law

Welcome to the Fall 2010 Administrative Law course at SMU Law School.  I’ll use this blog to post news stories relating to the material we’re discussing in class, and to continue discussions that we otherwise might not have time to conclude.  I also encourage you to take note of media stories relating to agencies.  I’m happy to post them here for discussion.

For tomorrow’s class, please read pp. 1-12 of the casebook and be prepared to discuss the hypothetical regarding genetically engineered viruses on p. 12.  Also, read this New York Times article, “Useful Mutants Bred with Radiation,” that demonstrates that the problem might not be so hypothetical.

Issue spotting exercise

Today, the media reports that the White House will issue new rules interpreting the landmark health reform legislation President Obama signed this month — in particular the provisions that prohibit insurance companies from denying coverage to children with pre-existing medical conditions, which has long been one of the most controversial practices in the industry.  After reading the article, what administrative law issues can you spot?

Not something you see every day…

… An article on ESPN.com about government regulation, encouraging the public to submit comments.  Anglers are worried that the Administration is going to limit their ability to fish recreationally (although a progressive media watchdog debunks this characterization).  There are a number of interesting administrative law issues here.

First, what’s the legal status of the Interagency Ocean Policy Task Force and the recommendations they make?  Will the recommendations becoming binding?

Second, why doesn’t NOAA (the National Oceanic and Atmospheric Administration) simply propose regulations and start the rulemaking process?

Senate Threatens to Invoke Congressional Review Act against EPA

Recall our class discussion of the Congressional Review Act as a response to the Supreme Court’s decision in INS v. Chadha.  Last week, several Senate Republicans and a few conservative Democrats threatened to invoke the CRA against a forthcoming EPA rule regulating carbon dioxide and other air pollutants.  Later this semester, we’ll read the Supreme Court’s “landmark 2007 ruling” mentioned in the New York Times article (Massachusetts v. EPA).  Is this an appropriate use of the CRA?  Who is likely to win this showdown between the legislative and executive branches? (Thanks to Tate Hemingson for the link).

The Back and Forth of Executive Orders

Recall our brief discussion of President Bush’s Executive Order 13422, and the corresponding New York Times article, Bush Directive Increases Sway on Regulation.  A few days after he was inaugurated, President Obama issued Executive Order 13497, which in one fell swoop revoked two prior Executive Orders that beefed up regulatory review (the 2002 EO from President Bush, and a 1993 EO from President Clinton).  But, President Obama didn’t simply revoke these policies; he ordered the OMB to reevaluate how it reviews agency regulations and identify the best way to do it.  The OMB then requested public comments, and as you can see, received a lot of them.

What do you think about the back-and-forth between administrations?  How much immediate oversight should the President and OMB exercise over agency regulations?

First Class Assignment

Welcome to Administrative Law.  For Thursday’s class, please read pp. 1-12 and 703-12 of ASIMOW & LEVIN, STATE AND FEDERAL ADMINISTRATIVE LAW (3d ed. 2009).  Please also read this article to prepare for our discussion of the problem on p. 12:  New York Times, Useful Mutants Bred with Radiation.  Note that pp. 703-12 are the first few sections of the federal Administrative Procedure Act (APA), the procedural statute that governs federal agencies.  We’ll refer to the APA throughout the course, and we’ll read the second half excerpted in the book for next Tuesday.  Try to get a sense for the types of procedures that agencies can handle.

Let’s schedule a review session

Please let me know when you’re not available for a review session.  The time slot with the fewest people unable to make it wins.  I’ll keep the voting open until next week.

A Public Comment Presidency?

First, thanks to Naomi for tipping me to Obama’s plan to solicit public comments for a five-day period before signing any non-emergency legislation.  Of course, the Obama Administration couldn’t use public comments to amend or improve legislation (which would violate separation of powers).  But it’s interesting that he seems to be adopting a tool from administrative agencies, even if its use might be somewhat superficial.  Would President Obama really refuse to sign legislation he otherwise agreed with if the web site, Change.gov, received a torrent of public comments against it?  Is this a more extreme form of governing by poll numbers, or does it serve a useful democratic role for seeking public input?

Also, thanks to Lance for alerting me to several resources explaining the role of Presidential signing statements.  Here’s Dean Yoo from Vanderbilt Law, testifying in front of the Senate Judiciary Committee that Presidential signing statements are an important part of the legislative history of a statute — at least on par with the history generated by the House and Senate — insofar as it provides a contemporaneous view on how the statute is interpreted by a politically accountable branch of government.  Also, here’s a student note in the Minnesota Law Review that’s directly on point.

The Election and the 11th Hour for Agencies

Over the next few weeks, I’m going to post several items addressing how the presidential election and the pending change in administrations will affect federal agencies.

Today, the Washington Post has a nice piece on how the Bush Administration is seeking to push through several 11th hour regulatory (or rather, deregulatory) initiatives during the last days of the administration.

What effects might these initiatives have on the next administration?  How permanent are they?

UPDATE: President-elect Obama’s transition team is already considering how it may undo several Bush Administration policies.  The Washington Post reports today that Obama’s team has identified over 200 items to reverse, including several key Executive Orders and the federal EPA’s refusal to allow the state of California to regulate greenhouse gas emissions.

F.T.C. Chief Balks at Intel Inquiry

Last year, the Chairwoman of the Federal Trade Commission refused to bring an antritrust investigation against Intel even though regulatory agencies in other countries found that Intel violated their antitrust laws.  There are a number of interesting administrative law issues here.

Here’s a chance to earn some participation credit towards your grade.  Copy and paste any passages from the article that address issues we’ve discussed in class, then post your analysis.  Please choose one salient issue.  You may address the same issue as previous posters if you would like to supplement or disagree with that person’s analysis.

UPDATE: Thanks to Jennifer Wong for alerting us in Comment 7 to the FTC’s change of heart.  New FTC Chairman William Kovacic authorized a formal investigation in June 2008.  Nevertheless, it will probably take the FTC some time to determine whether to bring formal charges.