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.
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?
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).
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.