Administrative Law

Although Congress has so far declined to enact any immunity protection specifically targeted at COVID-19 claims, that has not stopped the Executive Branch from responding to the pandemic with immunity measures.

The Supreme Court’s changing composition and, relatedly, its increasing skepticism for the current structure and pervasiveness of the administrative state have given rise to increased constitutional challenges to agency actions that seem increasingly likely to be successful.

Perhaps no problem has caused more consternation and outright confusion in administrative law circles than the Ad-ministrative Procedure Act’s (APA) exemptions to notice-and-comment rulemaking, the process by which agencies present proposed rules to the public for feedback before issuing them in final form.

In Seila Law LLC v. Consumer Financial Protection Board, the Supreme Court invalidated a statutory provision that protected the director of the Consumer Finance Protection Board (CFPB) from removal by the president except for “inefficiency, neglect of duty, or malfeasance in office.” Writing for the Court, Chief Justice John Roberts announced a new test for evaluating the constitutionality of “for cause” restrictions on presidential removal of high-level agency officials.

The U.S. Supreme Court’s June 29, 2020 decision in Seila Law LLC v. Consumer Financial Protection Bureau fixed a glaring constitutional defect in the way Congress structured the Consumer Financial Protection Bureau (CFPB or Bureau).

In Seila Law LLC v. Consumer Financial Protection Bureau, the Supreme Court, in an opinion by Chief Justice John Roberts, invalidated the provision of the Dodd-Frank Act restricting the president’s removal of the director of the Consumer Financial Protection Bureau (CFPB) to cases of “inefficiency, neglect of duty, or malfeasance in office.” The Court’s decision leaves the director subject to removal by the president for any reason or no reason at all.

Now that former Vice President Joe Biden has emerged as the Democratic Party’s presumptive nominee for president in the 2020 general election, he and his team have started to think about a possible presidential transition.

Administrative adjudication is poised for avulsive change. The Supreme Court recently pronounced some administrative law judges (ALJs) constitutional officers that must be appointed by the President, a department head, or a court of law.

Notice-and-comment rulemaking is often thought of as a fixed process: if agency X follows the process then it creates binding regulation Y.

In the earliest days of his presidency, Donald Trump issued an executive order that exemplifies a common attitude toward regulation today. President Trump ordered federal administrative agencies to revoke at least two regulations for every one they issued and to cut regulatory costs without considering the benefits lost.