September 11, 2021
Earlier this summer, President Biden delivered on a highly anticipated campaign promise to crack down on corporate monopolies and boost competition across the economy. In a comprehensive executive order, President Biden pledged to take a “whole-of-government” approach to rigorously enforcing the nation’s antitrust laws, documenting how rising corporate consolidation harms consumers and small businesses in…
April 9, 2021
In America, the people are sovereign and straightjacketed. Faced with a problem — passing, like a pandemic, or persistent, like poverty — they can call on their government to answer it. But, when they act, courts can tell them they’ve overstepped their Constitution’s grant of powers. Recently, several federal district courts, faced with a novel national…
March 2, 2020
In 2018, the Centers for Medicare and Medicaid Services (CMS), a division of the Department of Health and Human Services (HHS), issued new guidance to states announcing the agency’s support for efforts to incorporate work requirements into state Medicaid plans. Kentucky and Arkansas soon took up the agency’s offer and both submitted proposals that included…
February 7, 2020
The Au Pair Program is a Department of State exchange visitor program that involves three parties: au pairs who are foreign citizens between the ages of 18 and 26; 15 sponsor organizations, which are private placement agencies that must be officially designated and authorized by the State Department; and host families. Au pairs come to…
November 18, 2019
For decades, “conscience clauses” in statutes governing health care have protected the rights of employees from acting against their religious and moral beliefs. Critics of these provisions insist that there is a greater risk of discrimination against patients than discrimination against employees. Recently, in New York v. Department of Human and Health Services, Judge Engelmayer…
November 10, 2019
The Trump Administration’s targeting of immigrants is no secret. Earlier this month, the Department of Justice (“DOJ”) “announced that in fiscal year 2019 (FY19), its U.S. Attorneys’ Offices prosecuted the highest number of immigration-related offenses” in the last twenty-five years and its Executive Office for Immigration Review adjudicated 275,000 cases, the second highest number in…
November 6, 2019
The impact of the Supreme Court’s interpretation of “sex” in R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission this Term may not be limited to enforcement of the Civil Rights Act. In fact, many federal statutes, including the 2010 Affordable Care Act (ACA), have adopted identical language. Recently in Franciscan Alliance,…
October 25, 2019
In September, the war against stronger vehicle emission standards got real. We went from two and a half years of escalating rhetoric between the Trump administration and California to dramatic federal action with potentially profound consequences. The National Highway Traffic Safety Administration (“NHTSA”) and the U.S. Environmental Protection Agency (“EPA”) jointly issued new rules to…
October 24, 2019
Should the internet be regulated? This is a question that has plagued scholars, practitioners, and government officials alike for years. Proponents of regulation have argued that without regulation—such as net neutrality protections—internet service providers (ISP) can discriminate against certain online content creators by charging higher fees or slowing their websites, which in turn stifles competition….
October 8, 2019
“Here we are again.” The Third Circuit has had enough in Prometheus Radio Project v. FCC (“Prometheus IV”), the FCC’s fourth loss in a series of cases spanning over fifteen years, as the court vacated a set of FCC policies for analytical shortcomings. In reaching this decision, the court implicitly invoked two central principles: that…
November 8, 2018
In early October, the International Panel on Climate Change (IPCC) released an alarming new report on the impact climate change will have on the planet by 2040. These new findings, reviewed by ninety-one international scientists, are worrisome because it now seems that disaster is possible with an even smaller increase in global temperatures than previously…
October 29, 2018
Pop quiz: which part of the federal government is tasked with preventing cyber interference in our elections? Congress has refused to say. We have reached a point of a significant gap between an important federal need and existing federal power. And in the absence of that federal power, federal agencies have stepped into the gap…
July 30, 2018
In a move with significant implications for federal civil rights enforcement, the Department of Education has halted investigations into several large for-profit institutions widely accused of defrauding students. This decision sends an even clearer message that the Department of Education stands on the side of corrupt corporations rather than with students. Its decision allows these…
July 13, 2018
What is to become of administrative adjudication and adjudicators? As the never-ending assault on the administrative state marches on, administrative adjudication is in the cross-hairs of reformers. The latest chapter in the ongoing controversy over the proper role of adjudication within administrative agencies is the Supreme Court’s recent decision in Lucia v. SEC, that SEC…
April 4, 2018
The recent revelations of Facebook’s sharing of user data with Cambridge Analytica is just the latest in a long line of privacy missteps by the monolithic social media platform. The public outcry seems louder today than ever before, but the crucial question is: will the company be more responsive than it was after previous privacy…
April 2, 2018
In February, the Massachusetts Attorney General’s Office published an analysis concluding that drivers living in the state’s predominantly minority communities are charged higher auto insurance premiums than similar drivers living in majority white communities. In fact, the study found that experienced drivers with good driving records in the largest minority population areas pay more for…
January 26, 2018
Generating electricity from coal is a dirty business. Coal mining and power production release toxic heavy metals like mercury, respiratory irritants like sulfur dioxide and particulates, and large volumes of heat-trapping gases like carbon dioxide and methane. Nevertheless, the current administration has made no secret of its desire to “save” coal. Its latest effort involved…
January 2, 2018
This post is the second in a two-part series by Professor Sharkey. The first post can be found here. My proposed Chevron–State Farm conceptual framework comes at a critical time for Chevron. The particular form of Chevron retreat I envision — one that widens the space for the application of State Farm — is fundamentally…
December 6, 2017
The modern administrative state was built on the promise of expertise. As James Landis argued in his New Deal-era defense of the bureaucracy, expert agencies are needed to effectively oversee the behavior of sophisticated industry actors. Consistent with Landis’s vision, government agencies today are populated by subject matter experts. Thus, the Environmental Protection Agency (EPA)…
December 4, 2017
Overview Chevron — the stalwart doctrine of administrative deference — is under political, judicial, and academic attack. Our newest Justice, Neil Gorsuch, has denounced Chevron as “a judge-made doctrine for the abdication of the judicial duty.” Chief among his complaints is that Chevron deference enables an agency to “reverse its current view 180 degrees anytime…
November 30, 2017
We are currently in the midst of the most important deregulatory moment in the United States since the beginning of Ronald Reagan’s presidency in 1981 — perhaps since the dawn of the administrative state. President Donald Trump has issued a series of Executive Orders directing agencies to explore opportunities to reduce regulatory burdens, including Executive…
October 17, 2017
In the high-flying corporate world, employees from time to time suspect that a colleague or boss may be violating federal securities laws. But they may shy away from reporting these violations — from “blowing the whistle” — either to the employer or relevant authorities, because of a risk of retaliation. When Congress passed the Dodd-Frank…
