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Administrative Law & Regulation

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2017 National Lawyers Convention

November 16, 2017

The 2017 National Lawyers Convention is scheduled for Thursday, November 16 through Saturday, November 18 at the Mayflower Hotel in Washington, D.C. More information will be posted later this summer.

Improving the Use of Science in Regulation

Administrative Law & Regulation and Environmental Law & Property Rights Practice Group Teleforum
Susan E. Dudley June 29, 2017

Regulations intended to address public health and environmental risks depend heavily on scientific information. Yet, they are often the subject of heated debate, involving accusations of “politicized science,” “advocacy science,” and “junk science.” Susan Dudley will discuss her forthcoming paper with Marcus Peacock that explores the motivations and institutional incentives that have led to this acrimony. The paper illustrates the problem with a case study of the National Ambient Air Quality Standards issued under the Clean Air Act, and offers recommendations for improving how science is used to inform regulatory policy.

Featuring: 

  • Hon. Susan E. Dudley, Director, Regulatory Studies Center and Distinguished Professor of Practice, The George Washington University

Immigration Moratorium in the Supreme Court

International & National Security Law Practice Group
Josh Blackman, David B. Rivkin Jr., Ilya Somin June 26, 2017

Today, the Supreme Court granted certiorari in Trump v. International Refugee Assistance Project and stay applications were granted in part. The case is based on the January 21 Executive Order No. 13780, “Protecting the nation from foreign terrorist entry into the United States.” The order suspended immigrant and nonimmigrant entry into the country by citizens of seven majority Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for 90 days. It also suspended refugee admission into the United States for 120 days, and barred entry of Syrian refugees until further notice. The stated order’s purpose was to “ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles.”

The Washington State Attorney General filed a lawsuit against the order in District Court citing harm to Seattle residents. Judge James Robart in the Western District of Washington issued a restraining order on February 3 halting President Trump’s executive order nationwide. The Department of Justice appealed the restraining order to the Ninth Circuit Court of Appeals, which rejected the Justice Department’s appeal for an emergency stay.

Join us for a great discussion on what the Supreme Court’s actions mean for the current application of the EO and a preview of the case before the Court. 

Featuring:

  • Prof. Josh Blackman, Associate Professor of Law, South Texas College of Law, Houston
  • David B. Rivkin Jr., Partner, Baker & Hostetler LLP

  • Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University

 

Bottleneckers: The Origins of Occupational Licensing and What Can Be Done About Its Excesses

Federalist Society Review, Volume 18
Dick M. Carpenter, Ph.D. June 26, 2017
Abstract Businessman in Red tape

Dick Carpenter critically discusses economic regulation in general and occupational licensing in particular. He goes on to discuss Professor Randy Barnett’s theory that the Constitution should be interpreted to protect economic liberty, then proposes one way legislatures can protect economic liberty without sacrificing the public good. [Read Now]

Chevron's Foundation: Congressional Delegation of Interpretive Primacy - Podcast

Administrative Law & Regulation Practice Group Podcast
Mark Seidenfeld June 23, 2017

This Teleforum explores the foundation for Chevron deference to agency statutory interpretation, and the implications of that foundation. In particular, it considers whether the Supreme Court’s justification of Chevron as deriving from an implicit delegation of interpretive primacy to an agency within the context of taking action with the force of law is justifiable. It also considers whether a better justification is the implicit constraint inherent in Article III of the Constitution that courts should avoid engaging in policy decisionmaking to the extent possible when performing their judicial functions. It goes on to consider the implications of these two different justifications for Chevron, potentially addressing the applicability of Chevron to actions that do not carry the force of law (i.e. Chevron’s step zero), Chevron’s major question exception, the appropriate judicial inquiry at step two of Chevron, and perhaps even the extent to which Congress can override the Chevron doctrine as a canon of statutory interpretation.

Featuring: 

  • Mark Seidenfeld, Patricia A. Dore Professor of Administrative Law, Florida State University College of Law

Scalia and Gorsuch on Chevron Deference

Short video featuring Edward Whelan
M. Edward Whelan June 22, 2017

How do Supreme Court Justices differ in opinion on Chevron deference? Edward Whalen, President of the Ethics and Policy Center, outlines a key dispute on the conservative side of Chevron and judicial deference. 

Chevron's Foundation: Congressional Delegation of Interpretive Primacy

Administrative Law & Regulation Practice Group Teleforum
Mark Seidenfeld June 21, 2017

This Teleforum explores the foundation for Chevron deference to agency statutory interpretation, and the implications of that foundation. In particular, it considers whether the Supreme Court’s justification of Chevron as deriving from an implicit delegation of interpretive primacy to an agency within the context of taking action with the force of law is justifiable. It also considers whether a better justification is the implicit constraint inherent in Article III of the Constitution that courts should avoid engaging in policy decisionmaking to the extent possible when performing their judicial functions. It goes on to consider the implications of these two different justifications for Chevron, potentially addressing the applicability of Chevron to actions that do not carry the force of law (i.e. Chevron’s step zero), Chevron’s major question exception, the appropriate judicial inquiry at step two of Chevron, and perhaps even the extent to which Congress can override the Chevron doctrine as a canon of statutory interpretation.

Featuring: 

  • Mark Seidenfeld, Patricia A. Dore Professor of Administrative Law, Florida State University College of Law

Regulatory Transparency Project: What and Why?

Free Lunch Podcast featuring Amb. C. Boyden Gray and Project Director, Devon Westhill
C. Boyden Gray, Devon Westhill June 09, 2017

The Regulatory Transparency Project seeks to combat the excesses of the administrative state in this country. All too often, over-regulation of the economy stifles innovation, productivity, opportunity and ultimately, the American Dream. We want people to look at regulations which are burdensome and extremely inefficient and not simply submit to them as the cost of doing business but rather, look for real and concrete ways to change them for the better.  --  The RTP is a years-long endeavor designed to reach and to educate a broad audience. The purpose, in part, is to illustrate that regulatory excess is not a partisan issue but, a good government issue. We believe that such an approach can lead to both immediate change and, more importantly, development of a healthy societal skepticism of regulation.

Introduction to the Free Lunch Podcast

Featuring Project Director, Devon Westhill
Devon Westhill June 09, 2017

The Regulatory Transparency Project seeks to combat the excesses of the administrative state in this country. All too often, over-regulation of the economy stifles innovation, productivity, opportunity and ultimately, the American Dream. We want people to look at regulations which are burdensome and extremely inefficient and not simply submit to them as the cost of doing business but, rather, look for real and concrete ways to change them for the better.  The RTP is a years-long endeavor designed to reach and to educate a broad audience. The purpose, in part, is to illustrate that regulatory excess is not a partisan issue but, a good government issue. We believe that such an approach can lead to both immediate change and, more importantly, development of a healthy societal skepticism of regulation.

Devon Westhill introduces and describes the Free Lunch podcast series, a production of the Federalist Society's Regulatory Transparency Project.

Legal Challenge to the President's Executive Order on Reducing Regulation and Controlling Regulatory Costs - Podcast

Administrative Law & Regulation Practice Group Podcast
Thomas M. Johnson, Jr. May 19, 2017

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.

Featuring:

  • Thomas M. Johnson, Jr., Deputy Solicitor General of West Virginia