Friday, December 16, 2011

Rulemaking: D.C. Circuit Decision in ATA v. National Mediation Board

Here's a post from Jeffrey Lubbers, Professor of Practice in Administrative Law at American University's Washington College of Law:

Friends—The D.C. Circuit affirmed the district court’s upholding of the National Mediation Board’s election ballot counting rule today.  Judge Tatel wrote for himself and Judge Griffin.  Judge Henderson dissented.

The court ruled, using Chevron, that the statute was ambiguous and that the Board’s rule was permissible.  It also ruled that its change from a longstanding rule was not arbitrary and capricious, citing Fox TV Stations, and affirmed Judge Friedman’s denial of a discovery request by ATA seeking evidence of bias on the part of the Board majority, citing the ANA case.  It is a rare rulemaking bias case in that regard. 

10-5253, Air Transp. Assoc. of America v. National Mediation Board

Tuesday, December 13, 2011

REINS Act Passes House

The REINS (Regulations from the Executive in Need of Scrutiny) Act, H.R. 10, passed the House on December 7.  The vote was 241-to-184; all Republicans present and four Democrats voted for the bill.  Politically, the bill is generally lumped together with the Regulatory Accountability Act, H.R. 3010, on which see here and here.  Thus, the Wall Street Journal likes it; the New York Times does not.  Substantively, however, it would do something quite different.  In a nutshell, it would take the existing Congressional Review Act's almost-entirely-ignored provisions for congressional disapproval of significant regulations and makes one fundamental change: Instead of permitting passage of a joint resolution of disapproval before a major regulation (i.e. one with an annual impact on the economy over $100 million) becomes effective, it would require passage of a joint resolution of approval before the regulation becomes effective. The bill would create a special fast-track mechanism for considering such a resolution within the required time period; delaying tactics such as filibusters and holds would not be permitted.

As with the Regulatory Accountability Act, the legislation's prospects in the Senate are much dimmer than in the House, and the White House has issued a Statement of Administration Policy threatening a veto.

The Section has not taken a position or submitted comments on the REINS Act.  Useful discussion in the blogosphere includes Jonathan Adler's generally supportive posts at the Volokh Conspiracy, former Section Chair Sally Katzen's testimony opposing the bill, and extensive coverage at RegBlog.

Wednesday, December 7, 2011

Law Community on

A key piece of the current administration's efforts to make more government-held information available on-line, in usable form, is the website.  Readers of this blog might be particularly interested in the "Law Data Community" on that site.  This is a portal to material that is not "data" in the usual sense, but rather a wide range of agency legal materials other than regulations: adjudicatory decisions, case filings from DOJ, OLC and agency general counsel opinions, and various agency directives.

Although the available agency material is for now somewhat haphazard -- including some that will be of broad interest and some that almost no one will care about -- and incomplete, there's a lot of good stuff here which is not in every case easy to find otherwise.  Material is steadily accumulating, to the point where the site is now a useful resource, and likely to be come more so in the future.  It's worth a look.

Friday, December 2, 2011

Regulatory Accountability Act Passes House

Today the House of Representatives passed the Regulatory Accountability Act, H.R. 3010, by a vote of 253-167.  No Republicans voted against it; 19 Democrats voted for it.  The general expectation is that the bill will not advance in the Senate, and the White House has threatened a veto if it does, so the ultimate fate of the legislation will likely turn on the results of the 2012 elections.

Press coverage of the vote can be found here and here.  The Section's comments on the bill are here.