New Federal Initiatives Project
Through the New Federal Initiatives Project (NFIP) of the Practice Groups, the Federalist Society is monitoring and analyzing some significant proposals of the new Congress and administration, with an eye toward their constitutional and legal implications. The Federalist Society hopes this project will continue to foster debate on these and other important issues. For briefing papers on such proposals, choose any of the recently posted papers below or select from any of the categories or the index on the left hand side of this page.
On December 2, 2011, the United States House of Representatives passed the Regulatory Accountability Act of 2011 (H.R. 3010). This legislation would amend the Administrative Procedure Act (APA), which governs the federal rulemaking process. It would codify existing rulemaking requirements contained in executive orders and create new rulemaking requirements. In this paper, Mr. Daren Bakst provides a summary and explanation of the legislation's key provisions and their potential implications on the rulemaking process.
The much-debated Section 404 of the Sarbanes-Oxley Act of 2002 imposed significant cash expenses and compliance budens on U.S. public companies, which were disproportionately heavy on smaller companies and much bigger than expected. This is a matter of fact. The problem was recognized by the Dodd-Frank Act of 2010, of which Section 989G permanently exempted companies with a market capitalization held by non-affiliates of less than $75 million from the requirements of Section 404(b). Congressman Ben Quayle and several co-sponors introduced a bill on September 15, 2011, the "Startup Expansion and Investment Act," HR 2941, with the goal of further reducing the regulatory burden of Sarbanes-Oxley, and making conversion to a U.S. public company more attractive.
On July 24, 2011, President Obama signed Executive Order 13581, “Blocking Property of Transnational Criminal Organizations.” In the Order, the President found that “the activities of significant transnational criminal organizations [TCOs] . . . have reached such a scope and gravity that they threaten the stability of international political and economic systems.” Those organizations, defined in the order as persons or groups that engage in “an ongoing pattern of serious criminal activity involving the jurisdictions of at least two foreign states; and that threatens the national security, foreign policy, or economy of the United States,” are determined to “constitute an unusual and extraordinary threat to the national security, foreign policy and economy of the United States,” making them subject to sanctions under the International Economic Emergency Powers Act (IEEPA).
Section 956 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 ("Dodd-Frank") requires seven federal agencies, including the FDIC and the SEC, to jointly adopt rules regulating incentive-based compensation arrangements at "covered financial institutions" that are excessive or that could lead to material financial loss. On April 14, 2011, these agencies published a proposed rule implementing Section 956 of Dodd-Frank, kicking off a 45-day comment period that expired on May 31, 2011. The regulators are now in the process of jointly reviewing the comments submitted. They are expected to make the terms of the proposed rule, if adopted, effective six months from publication of the final rule in the Federal Register. Given the current timeframe, the final rule may become effective in the first quarter of 2012.
On February 6, 2009, President Obama issued Executive Order 13502, Use of Project Labor Agreements for Federal Construction Projects (“EO 13502”). The Executive Order encourages federal agencies to use union-only project labor agreements (“PLAs”) on construction projects, the cost of which exceeds $25 million. On April 13, 2010, the Federal Acquisition Regulations were amended to implement EO 13502. (Federal Acquisition Regulation; FAR Case 2009–005, Use of Project Labor Agreements for Federal Construction Projects, Fed. Reg. 19168 (13 Apr. 2010) (codified at 48 C.F.R. §§ 2,7,17,22,52)).
This article describes the detention and Authorization for Use of Military Force (AUMF) provisions in the National Defense Authorization bill, which was passed by the House of Representatives by a 322-96 vote on May 26, how these provisions are different from the provisions in earlier versions of the bill, and where they are likely to generate opposition. House Armed Services Committee Chairman Buck McKeon introduced the bill in early March and provided updated language for the detention and AUMF sections on May 9. For organizational simplicity, I describe the bill in the order in which its sections appear and compare these sections to the analogous ones in the earlier version.
On April 20, 2011, the National Labor Relations Board’s Acting General Counsel issued a complaint against the Boeing Company, alleging that the company’s decision to assemble large commercial aircraft (787 Dreamliners) at a new final assembly plant in South Carolina violated the National Labor Relations Act. The complaint alleges that Boeing illegally “transferred” work from its unionized assembly plant in Seattle, Washington to this new South Carolina facility.
From its inception, the nuclear power industry has been hounded by its critics, who ask, "What will be done with the spent nuclear fuel?", and its would-be friends, who say, "I'd like to see more reactors, but first we have to solve the spent nuclear fuel problem." Nuclear fuel goes into reactors as uranium pellets contained in tubes that are bundled into fuel assemblies. After four to six years in the reactor the fuel is "spent." The spent nuclear fuel (SNF) is removed from the reactor and stored on-site for a cool-down period of at least ten years. After the cooling-off period, the SNF can be shipped off-site for recycling (the "closed cycle" approach) or burial (the "open cycle" approach)...The closed and open cycle solutions each have technical advantages and disadvantages, and different countries have chosen one or the other for policy reasons. Initially, in the United States, the industry took the closed cycle approach, with private sector facilities performing the recycling. This lasted until 1982, when Congress passed the Nuclear Waste Policy Act (NWPA).
Many religious organizations, as a sincere exercise of their religious faith, engage in religious preferences when hiring those who serve in their organizations. Such religious preferences are designed to ensure that a religious organization has in place personnel who affirm and practice the religious beliefs of that organization. Such religious preferences also maintain the religious autonomy of that organization by preventing situations in which that organization is compelled to hire those who do not share the core beliefs of that organization (e.g., a Jewish charity doesn't have to hire Christians or Muslims).
Healthcare reform is a promised major initiative of the Obama administration. Below are links to several articles, white papers, and letters that examine the legal and constitutional questions raised by the current proposals. Also available in links below are the healthcare reform bill as passed, and other documents on healthcare reform.