Administrative Law & Regulation Practice Group Podcast
On January 30, 2017, President Trump issued an Executive Order entitled Reducing Regulation and Controlling Regulatory Costs. The Executive Order instructs federal agencies to identify two existing regulations for repeal for each new regulation proposed. The Order further instructs the Director of the Office of Management and Budget to set an incremental cost target for each agency for each future fiscal year. Subject to certain exceptions, each agency must meet its target by offsetting the costs of new regulations by cost savings from repealed rules.
A lawsuit has been filed challenging the legality of the Executive Order in federal district court in Washington, D.C. The complaint argues, among other things, that the Order violates the separation of powers, the President's obligations under the Take Care Clause, and the Administrative Procedures Act. Thomas M. Johnson, Jr., is the Deputy Solicitor General of West Virginia and counsel of record on an amicus brief co-filed with the State of Wisconsin on behalf of a 14-state coalition supporting the legality of the Executive Order. Mr. Johnson joined us to discuss the Order and the pending litigation. This Teleforum is the fourth in our Executive Order Teleforum Series.
SCOTUScast 5-16-17 featuring Kristin Hickman
- Thomas M. Johnson, Jr., Deputy Solicitor General of West Virginia
On March 21, 2017, the Supreme Court decided National Labor Relations Board v. SW General, Inc. SW General, Inc. provides ambulance services to hospitals in Arizona. A union had negotiated longevity pay for SW General’s emergency medical technicians, nurses, and firefighters. In December 2012, between the expiration of one collective bargaining agreement and the negotiation of a new one, SW General stopped paying the longevity pay. The union filed an unfair labor practices claim with the National Labor Relations Board (NLRB), which issued a formal complaint. An administrative law judge determined that SW General had committed unfair labor practices, but SW General contended that the NLRB complaint was invalid because the Acting General Counsel of the NLRB at the time, Lafe Solomon, had been serving in violation of the Federal Vacancies Reform Act (FVRA). President Barack Obama had nominated Solomon--who had then been serving as Acting General Counsel after the General Counsel had resigned--to serve as General Counsel, but the Senate had not acted on the nomination. The president had ultimately withdrawn the nomination and replaced it with that of Richard Griffin, who was confirmed. In the intervening period--including when the NLRB complaint had issued against SW General--Solomon had continued to serve as Acting General Counsel. SW General argued that under the FVRA, Solomon became ineligible to hold the Acting position once nominated by the president to the General Counsel position. The U.S. Court of Appeals for the D.C. Circuit agreed and vacated the NLRB’s enforcement order. The NLRB then obtained a writ of certiorari from the Supreme Court.
By a vote of 6-2, the Supreme Court affirmed the judgment of the D.C. Circuit. In an opinion by Chief Justice Roberts, the Court held that (1) subsection (b)(1) of the Federal Vacancies Reform Act of 1998, which prevents a person who has been nominated to fill a vacant office requiring presidential appointment and Senate confirmation from performing the duties of that office in an acting capacity, applies to anyone performing acting service under the FVRA and is not limited to first assistants performing acting service under Subsection (a)(1); and (2) Subsection (b)(1) prohibited Lafe Solomon from continuing his service as acting general counsel of the National Labor Relations Board once the president nominated him to fill the position permanently. The Chief Justice’s majority opinion was joined by Justices Kennedy, Thomas, Breyer, Alito, and Kagan. Justice Thomas filed a concurring opinion. Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined.
To discuss the case, we have Kristin Hickman, who is the Distinguished McKnight University Professor, Harlan Albert Rogers Professor of Law, and Associate Director, Corporate Institute at the University of Minnesota Law School. Administrative Law & Regulation Practice Group Podcast
How might America reform the modern administrative state—not only to limit its power, but to restore its constitutional accountability to Congress, the President, and the courts? That is the subject of a recent report by National Affairs, on policy reforms for a more accountable administrative state. In its four chapters, the report:
1. Diagnoses the fundamental problems underlying the modern administrative state, which reflect a failure of republican governance;
2. Proposes to restore Congress to its crucial constitutional role as the "First Branch" in lawmaking, policymaking, appropriations and oversight;
3. Proposes to modernize White House oversight of agency regulatory actions, primarily by shifting the Office of Information and Administration's role from one of reaction to one of action; and
4. Proposes to reform both the laws governing agency process and the laws governing judicial review of agency action, in order to improve the quality of agency actions and, relatedly, to ensure more meaningful judicial review of agency actions.
To discuss these issues and proposals, please join us for a teleforum discussion with the report’s three authors: Adam White, Oren Cass, and Kevin Kosar.
Administrative Law and Federalism & Separation of Powers Practice Groups Podcast
- Oren Cass, Senior Fellow, Manhattan Institute
- Kevin Kosar, Governance Project Director and Senior Fellow, R Street Institute
- Adam White, Research Fellow, The Hoover Institution and Adjunct Professor, Antonin Scalia Law School
In recent weeks, there has been a flurry of editorials on the proper role of the White House Counsel, driven by criticism of White House Counsel Donald McGahn. After the rollout of President Trump’s Immigration Executive Order, some, like Jack Goldsmith, have written that McGahn should have worked with other agencies before the Order was released to prevent the chaos that ensued.
But what is the proper role of the White House Counsel? Is it to coordinate inter-agency reaction? Should he or she provide legal support to the President first? Or is his or her real client the office of the presidency? Former White House Counsel C. Boyden Gray and former Deputy White House Counsel Timothy Flanigan joined us to help answer these questions and many others.
- Hon. Timothy E. Flanigan, Chief Legal & Compliance Officer, Corporate Secretary, Cancer Treatment Centers of America; Former Deputy White House Counsel to President George W. Bush
- Hon. C. Boyden Gray, Founding Partner, Boyden Gray & Associates; Former White House Counsel to President George H.W. Bush