Archives for Spring 2016

March 22

News

Gorsuch won’t be pinned down on Chevron doctrine

Endrew F. v. Douglas Cty. Sch. Dist. RE-1,

USSC expands students rights to an individually tailored education under federal law. Good IDEA, but a huge partially funded mandate.

Assignment

Chapter 6 through 256

Resources

Study Guide: Access to Judicial Review and Finality

This includes materials we will read for next class.

February 6

News

State of Washington & State of Minnesota v. Trump

Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, Titled “Reducing Regulation and Controlling Regulatory Costs”

OMB Circular No. A-4 (referenced in the guidance document)

Assignment

Chapter 3, Section II and the remainder of the chapter.

APA Adjudication Provisions

These set up the framework for Formal/APA adjudications. We will parse these. Much of the framework is also applicable to non-APA adjudications.One of the reasons we care about whether these apply is that the Equal Access to Justice Act– 28 U.S. Code § 2412 (d)(1)(D) allows attorney’s fees for APA proceedings as described in APA 504 (A)(4) which refers to 554 proceedings.)

554 -Adjudications.

556 – Hearings; presiding employees; powers and duties; burden of proof; evidence; record as basis of decision.

557 – Initial decisions; conclusiveness; review by agency; submissions by parties; contents of decisions; record.

558 – Licensing

LA Law Note – Title 49, Chapter 13, §961. Licenses

Resources

Formal Adjudications

Limiting Bias in Adjudications

Licensing and Permitting

February 1

Check back for updates if there is adlaw breaking news.

News

This was posted while were discussing OIRA on Monday: Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs

Trump EO on Immigration – Complaint as Filed

Suit by the Washington State Attorney General to enjoin the Immigration EO. Good list of the statements by Trump, including the signing statement, that indicate this is meant to be a Muslin ban.

Assignment

Read the executive order – Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs. This amends/partially replaces EO 12866, so we will also look at it.

Read Chapter 3 Section I, skip Section II for now, then Section III to G. Ex Parte Communications.

Resources

Introduction to Adjudications

Slides

 

 

January 30

Adlaw in the News

An executive order that is not like anything before, and which goes against traditional republican federalism

A proposed order that breaks both US and International Law

Have the Executive Orders Been Reviewed by Counsel?

Does the immigration executive order violate the 1965 Immigration and Nationality Act?

The Quiet GOP Campaign Against Government Regulation

Read this for class

Assignment

Finish Chapter 2

Guide: Removal and the Creation of Independent Agencies

Guide: General Regulatory Review and Coordination

Resources

OIRA

OMB – The White House site was taken down by Trump Administration

January 25

Adlaw in the News

More Executive Orders (called memorandum, for an unknown reason)

The Problem of Filling Desks in a New Administration

Citizens For Responsibility And Ethics In Washington v Donald Trump

We will look at this later when we discuss standing.

Assignment

INS v. Chadha, 462 U.S. 919 (1983)

Rather than using a casebook full of edited cases, we are going to read a smaller number of full text cases because that is what you read in real life. Read this carefully, using the guide to help identify the key issues. I expect class participation in the discussion.

Guide: The Legislative Veto and Separation of Powers

Read Chapter 2, Section III (B)(1) – Appointment (stop at Removal for this class)

Guide: The Appointments Clause

Addenda for last class

Recess Appointments – Article 2, Section 2:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

NLRB v. Noel Canning, 134 S. Ct. 2550 (2014) – allows the senate to determine when it is in session, thus blocking recess appointments.

Resources

How a bill becomes a law

Vesting and Take Care Clauses

“The executive Power shall be vested in a President of the United States of America.”  U.S. Const. art. II, § 1.

Article II says that the President, specifically, “shall take Care that the Laws be faithfully executed.”  Art. II, § 3.

Source of domestic power

Art II, sec. 2, cl 2 – the Appointments Clause

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… all other [principal] Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law:

but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

Background Reference Materials for Immigration Discussion

1951 Refugee Convention.

This creates the US treaty obligation to take in persons who are fleeing persecution. It is the major limitation on Congress power to control immigration. The procedures on legally entering the country as a political refugee (except for Cuba) are so convoluted that we effectively ignore our treaty obligations. Most enter illegally and then petition for asylum status.