Does EPA’s Clean Power Plan Proposal Violate the States’ Sovereign Rights?

Engage Volume 16, Issue 1
David B. Rivkin, Jr., Mark DeLaquil, Andrew Grossman June 15, 2015
EPA sign

This article discusses the Environmental Protection Agency’s proposed Clean Power Plan rule under the Clean Air Act. The authors argue that the Proposed Rule forces each state to overhaul its energy market. If the rule is finalized, and if it is held to be within EPA’s statutory authority, the courts would be constrained to reject it as exceeding federal power under the Constitution....[Read More!]

A Jurisprudential Divide in U.S. v. Wong & U.S. v. June

Engage Volume 16, Issue 1
Richard J. Peltz-Steele June 09, 2015

On April 22, the Supreme Court decided two consolidated cases construing the Federal Tort Claims Act, U.S. v Kwai Fun Wong and U.S. v June, Conservator.  The Court majority, 5-4, per Justice Kagan, ruled in favor of the claimants and against the Government in both cases. On the face of the majority opinion, Wong and June come off as straightforward matters of statutory construction.  But there’s more going on under the surface....[Read More!]


The Legality of Executive Action after King v. Burwell

Engage Volume 16, Issue 1
Josh Blackman June 08, 2015

This article will assess the legality of executive actions that the Administration may take after King v. Burwell to continue paying subsidies in the thirty-four states that declined to establish a state-based exchanges. This analysis is premised on potential administrative fixes HHS could employ following an adverse ruling in King v. Burwell....[Read More!]

Getting More Benefits From Benefit Cost Analysis

Engage Volume 16, Issue 1
J. Kennerly Davis May 28, 2015

This article discusses the use of benefit cost analysis by federal regulatory agencies.  It is universally recognized that a sound assessment of the benefits and costs associated with alternative courses of action is essential to good decision making and the cost effective allocation of the resources that must be committed to pursue important goals such as the protection of human health and the environment.  The recurring unresolved disputes about the projected benefits and costs associated with proposed regulations clearly demonstrate that the benefit cost analysis currently performed by federal regulatory agencies suffers from serious shortcomings that undermine public confidence in the rulemaking process.  These recurring unresolved disputes, and the shortcomings they reveal, prevent benefit cost analysis from making the kind of contribution to the rulemaking process that it could, and should, make....[Read More!]

FCC Preemption of State Restrictions on Government-owned Broadband Networks: An Affront to Federalism

Engage Volume 16, Issue 1
Randolph J. May, Seth L. Cooper May 20, 2015

The Federal Communications Commission’s February 2015 Order preempting state law restrictions on local government ownership of broadband networks constitutes one of the most significant overreaches in the agency’s history—a history which already includes plenty of overreaches. From the standpoint of constitutional federalism, the action is one of the most problematic ever taken by the Commission....[Read More!]