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Will Trump Have the First Numerate Administration?

James Scanlan January 04, 2017
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On November 28, 2016, the Department of Justice (DOJ) filed an amicus curiae brief urging the Supreme Court not to grant a writ of certiorari for review of the Fifth Circuit decision in Veasey v. Abbottstriking down a Texas voter ID law.  Given the likely views of the Trump administration on voter ID laws, if the Court grants review, DOJ may well file a brief in support of the petitioner.  Such brief would present the matter rather differently from the agency’s recent filing. [Read More]

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An Obama mandate to trim outmoded rules is one Trump should keep

Randolph J. May December 21, 2016
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Here’s the way I began my commentary, “One Obama Executive Order That Makes Sense,” published on December 19 in the Washington Times:

In July 2011, President Barack Obama actually issued an executive order that, at least on paper, makes good sense. It’s Executive Order 13579, ‘Regulation and Independent Regulatory Agencies,’ urging independent agencies such as the Federal Communications Commission to establish plans for periodic retrospective reviews aimed at eliminating outmoded regulations.

E.O. 13579 followed on the heels of an earlier Obama executive order requiring executive branch agencies to engage in retrospective reviews to eliminate outdated, no longer necessary regulations. In the case of so-called independent agencies, President Obama (supposedly) could not “order” that the agencies undertake retrospective reviews, so E.O. 13579 simply “urges” them to do so. [Read More]

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What a Trump Administration Might Mean for Employers

December 16, 2016
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On December 13, 2016, the Littler law firm sponsored a program entitled “The 2016 Presidential Election: What a Trump Administration Might Mean for Employers.” The program included a brief discussion of four “important labor and employment cases pending before the [U.S. Supreme] Court.” One of those cases is Serna v. Transport Workers Union of America, 654 Fed. Appx. 665 (5th Cir. July 11, 2016) (per curiam), petition for cert. docketed, No. 16-484 (U.S. Oct. 12, 2016), a case in which National Right to Work Legal Defense Foundation attorneys represent the plaintiff airline employees who are compelled to pay union fees as a condition of their employment even though they have chosen not to join the union. The issues presented in Serna are:

(1) “[w]hether [Railway Employes’ Department v.] Hanson[, 351 U.S. 225 (1956)], and implicitly Abood v. Detroit Board of Education, 431 U.S. 209 (1977), should be overruled insofar as they uphold the constitutionality of compulsory union fees”; and

(2) “[w]hether requiring that employees affirmatively object to subsidizing constitutionally nonchargeable union speech, rather than requiring affirmative consent, violates the First Amendment.”

Serna gives the Court an opportunity to revisit the issues it ducked 4-4 in Friedrichs v. California Teachers Ass’n, 136 S. Ct. 1083 (per curiam), reh’g denied, 136 S. Ct. 2545 (2016), when Justice Antonin Scalia unexpectedly died after the Court had heard oral argument in the case. The Justices will consider the Serna petition at their conference on January 6, 2017.

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Dodd-Frank Appears In Cleveland

John Shu July 20, 2016
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Last night, at the Republican National Convention in Cleveland, Donald Trump, Jr. criticized Dodd-Frank and the rapidly overgrowing administrative state in his keynote speech. He called today's administrative state a “regulatory state on steroids,” and noted, as an example, that Dodd-Frank itself was approximately 1,000 pages long, and that the federal government has issued approximately 22,000 pages in accompanying regulations.  He also said, almost certainly referring to the essentially-unaccountable Consumer Financial Protection Bureau,[1] that Dodd-Frank “doesn't help consumers, what it does is destroy small-business in favor of big business, who can afford the vast number of lawyers and accountants needed to comply.” [Read More]

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Trump Trumps Ginsburg

David L. Applegate July 18, 2016
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In an astonishing editorial – astounding because of its source, not its content – entitled “Mr. Trump Is Right About Justice Ginsburg,” The New York Times on Wednesday, July 13, 2016, opined that “Justice Ruth Bader Ginsburg needs to drop the political punditry and the name-calling.”  As The Times noted, Supreme Court Justice Ginsburg three times in the preceding week not only let the nation know what she thinks about the prospect of Mr. Trump as a potential U.S. President, but did so in a way befitting a politician more than a U.S. Supreme Court Justice. [Read More]