Section Brown Bag: Sex Discrimination at Colleges and Universities

Section Mix and Mingle

You are cordially invinted to join the Section for the Spring Member Mix & Mingle Event at the 11th Annual Administrative Law & Regulatory Practice Institute on Thursday, April 30, 2015 from 5:30 - 6:30 p.m. at the Walter E. Washington Convention Center, 2nd Floor, Room 202AB in the buliding closest to Mt. Vernon Square (on the Yellow/Green Lines at the Mt. Vernon Square/7th Street - Convention Center Station).  Appetizers, beer, wine & soft drinks are provided.  Attendance is complimentary for Section members.  The event will honor the Administrative Law Review for the launch of an interactive discussion series, "ALR ACCORDing to...," which features a filmed interview of an ALR author discussing a current work.  Please RSVP to anne.kiefer@americanbar.org if you plan to attend.  For more information on the Institute view the online brochure here.  Hope to see you there! 

Online Registration Open for 11th Annual Administrative Law Institute

The Section will host the 11th Annual Administrative Law Institute, April 30 - May 1, 2015 at the Walter E. Washington Convention Center in Washington, DC.  The April 30, 2015 program will cover a number of exciting topics, including Immigration Training, the FDA Rulemaking on E-Cigarettes, and the U.S. Supreme Court's recent decision in Perez v. Mortgage Bankers Association.  The May 1, 2015 program will include Rulemaking 101, an overview of the rulemaking process and judicial review. You can register online here. 

Supreme Court Teleconference Series: King v. Burwell

The Section's Supreme Court Teleconference Series continues March 5, 2015 from 3:30 - 4:30 p.m. EST with a discussion on King v. Burwell, a challenge to the Administration's policy on the availability of subsidies through the federal health insurance exchange under the Affordable Care Act.  On March 4, the Supreme Court will hear oral arguments for the case, which has attracted a significant amount of media attention because of its political and health policy implications.   The issues before the Justices turn largely on questions of statutory interpretation and agency discretion, perhaps informed by notions of federalism and the separation of powers. 

The Section's teleforum will discuss the Justices' questions, the parties' arguments, and their likely ramifications.  Confirmed panelists include Josh Blackman, assistant professor at the South Texas College of Law, and Simon Lazarus, senior counsel at the Constitutional Accountability Center.  Adam White of the Manhattan Institute and Boyden Gray & Associates will moderate the discussion. 

RSVP by Wednesday, March 4, 2015 with your name and e-mail address to angela.petro@americanbar.org. 

Spotlight on ABA Academy’s Cybersecurity Core Curriculum

by Nina Hart

This year marks the inaugural season of the ABA Academy’s Cybersecurity Core Curriculum.  The Curriculum is a series of programs addressing the cybersecurity risks facing lawyers, best practices for prevention and incident response, and lawyers’ legal and ethical obligations to clients regarding data security.

The next event in this series, “Moving Target: Cybersecurity Legal Requirements and Liabilities,” will be held on November 19, 2014.  More details on how to register for this and other upcoming events may be found here.

Facing the Need to Improve Cybersecurity Awareness & Practices

Lawyers are uniquely vulnerable to cyber attacks.  Jill Rhodes and Vincent Polley, who were instrumental in the creation of the Core Curriculum, assert that despite this vulnerability most firms and organizations are unprepared to address the risk.  Rhodes states, “We believe that lawyers are at risk because they hold such sensitive client data.”  Being prepared is part of being a responsible attorney; attorneys are required to protect client data from any sort of disclosure.  “The question,” Rhodes says, “is how to do that?  Many lawyers use technology, but tend to be wary with respect to security matters—it can be overwhelming.  How do you educate the legal population about the importance of protecting client data in a way that is understandable to that population?”

Creating the Tools to Help Lawyers Understand & Address Cybersecurity Threats

Echoing Rhodes’ sentiments, Polley notes that there was an “obvious need” for resources that lawyers could access in order to improve their understanding of and ability to address the threat of cyber attacks. The issue was determining what those resources would be.  “It was with the creation of the Cybersecurity Legal Task Force that the stars were properly aligned,” Polley says.  “All the cognizant ABA Sections, coming together, and leveraging their experience and expertise” led to the creation of the ABA Cybersecurity Handbook, a guidebook for lawyers on how to address the threat of cyber attacks on law practices.  Since its release, the Handbook has been a bestseller.  Rhodes states, “What is so great about the book is that it draws on the expertise of attorneys from different types of firms and practices.  These experts did the writing, and the Curriculum tracks the topics in the book.”  The authors of the book, and editors Rhodes and Polley, are also instructors for the Core Curriculum.

Facing the Challenge of Preventing Cybersecurity Attacks

When lawyers consider how to prevent and address cyber attacks, there are many issues to keep in mind.  First, Polley warns, “perfect security is unachievable.  Firms need to take a searching inward look at their own capabilities (and risks), and expand their dialogue with clients to address cybersecurity issues (and re-address them as circumstances change) to develop an informed, shared understanding of the risks.”  Rhodes adds that an effective dialogue also requires that “lawyers and managing partners work well with their IT and security offices.  Security shouldn’t be left for ‘others’ to worry about.  It is everyone’s responsibility to manage data.” 

Rhodes also highlights a critical concern that is rarely discussed.  “We need to discuss what happens if a law firm or organization has a disclosure.  Often, we can manage the disclosure itself; that’s a question of paying for the damage.  The hardest piece to address occurs as soon as a disclosure hits the press: how should the firm or organization address reputational risks?  One of the reasons to focus on this is 1) cyber attacks are a significant risk, and 2) if a firm has not put in preventative measures how can it protect its reputation?”

Meet the Editors

Jill Rhodes is currently Vice President and Chief Information Security Officer for Trustmark Companies, and is experienced in providing education and training to lawyers.  Prior to joining Trustmark Companies, she spent twenty years working on national security and data security issues for a variety of government agencies including the Office of the Director of National Intelligence, Central Intelligence Agency, and Department of Homeland Security.

Vincent Polley has been involved in cybersecurity for over twenty years.  In the mid-1990s, he was responsible for IT policy/law at a multinational energy company, and worked with the company to respond to cyber attacks on client data that were orchestrated by various nation states.  Since 1997, he has been blogging on cybersecurity matters through www.knowconnect.com/MIRLN.

Recapping the Homeland Security Institute - Part 2

by Nina Hart

On August 21–22, 2014, the American Bar Association hosted the Ninth Annual Homeland Security Institute in Washington, D.C.  The previous post focused on several major themes of the Institute.  This week’s post will focus on issues in immigration law, which was the topic of several panels.  These reflections come from the following presentations: America’s Immigration Agenda and Executive Power in Immigration Law.  A copy of the full agenda is here.

Part Two

One topic of interest at the Homeland Security Institute was improving immigration law and practice to enhance national security.  Panelists discussed the politics and policy behind previous and pending immigration reforms and the authority vested with both the legislative and executive branches that may enable such reforms.

Congressional Action

Congress has been active—at least in terms of debate—in the area of immigration law for decades, if not centuries.  Much of the modern immigration system, however, is based on the Immigration & Naturalization Act of 1952 (INA).  The INA has been amended several times as Congress has revisited certain policy questions in an attempt to modernize and improve the system.  For instance, in 1986, Congress shifted its attention to illegal aliens, and passed the Immigration Reform & Control Act (IRCA), which focused on paths to legalization and, for the first time, imposed sanctions on employers who knowingly hired illegal aliens.  In 1990, Congress returned its attention to immigrants who arrived legally, and passed amendments to the INA to address visa petition backlogs and how to better adjudicate family reunification cases. 

Since the 1990s, the two political parties have continued debating these issues, particularly with respect to increased border security measures and how to address the issue of illegal aliens.  Despite the high level and volume of debate, no major legislation has been passed since 1996.  Much of this inaction has less to do with policy divergences, but results from political incentives to take or not take action.  As one panelist pointed out, in 2006, the Senate introduced but did not pass a bill addressing border security and the e-verify system.  At the time, the parties could not reach a consensus on the substantive policies in the bill.  Ten years later, however, the parties have both moved to the center.  They largely agree that the path to legalization should be longer and more resources should be spent on border security.  However, the emotional undertones and political forces at work have prevented congressional action.  In particular, the demographic makeup of individual congressional districts has had a powerful effect on the political incentives of members of Congress with respect to their stances on immigration reform.  For example, there are 24 districts with an Hispanic population of over 25%.  Republicans Poe and Denham represent two of those districts, which, at first, may indicate that they have similar incentives with respect to supporting immigration reform.  However, President Obama won one of those two districts in the last election, which means that these two Republican members of Congress actually have divergent political incentives.  This complicated political backdrop, the panelists concluded, is largely the cause of the ongoing political impasse on immigration reform.

This political impasse is currently playing out with respect to Senate Bill 744 (“SB 744”), which has passed the Senate and is awaiting action in the House.  However, because of the ever-present electoral concerns, which are magnified by the fact that this is an election year, it seems unlikely that any action will be taken before the end of this congressional session.

Executive Action

In view of the active role that Congress has historically played in the immigration arena and the current political situation, one key question arises with respect to the Executive Branch.  How much discretion and “space” do the executive agencies have to shape policy?

At a general level, there is a consensus that the Executive Branch has broad authority to act in the area of immigration law.  However, numerous factors influence agency discretion and these factors may lead to more or less discretion in particular cases.  First, agencies are always limited by what Congress has expressly mandated.  Second, individual actors also influence agency powers in the sense that the people interpreting the statutes may reach conclusions about the mandates that vary over time and possibly with what Congress may have intended.  For example, in 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).  Pursuant to this Act, agencies had greater freedom to make rules increasing the grounds for deportation.  The ALJs also interpreted this Act to reduce their ability to grant clemency in deportation cases.  Congress disagreed with this interpretation and subsequently wrote a letter to the agencies to remind them of the many tools, especially prosecutorial discretion, at their disposal to address deportation.  Despite this letter, the agencies continued to believe that their discretion had been reduced and concluded that this was the result of Congress’ action, not the agencies’ inability to properly identify tools giving them discretion.

Third, where agencies believe they possess broad authority, the extent to which they shape policy depends on how they actually deploy the tools at their disposal.  For example, prosecutorial discretion is often the most critical tool in the context of immigration cases.  Rather than deport a particular individual, an agency may grant a temporary reprieve, choose not to bring a particular proceeding or choose not to bring certain charges.  Other statutes have granted similarly broad powers to the Executive to make individual admissions decisions on humanitarian reasons or economic reasons.  For example, under the Deferred Action for Childhood Arrivals Act, the Executive Branch may promise not to deport certain children for specified periods of time.  Additionally, Section 235 of the INA permits the Executive Branch to make asylum determinations and insulates those decisions from judicial review.

In sum, the Executive Branch is empowered to “reform” the immigration system by shaping enforcement priorities and determining how to expend its resources.  As noted, however, executive authority is cabined by legislative mandates.  Thus, if a broader overhaul is to be accomplished, such action must ultimately come from Congress.

2014 Administrative Law Conference - Registration Open

Registration is open for the Section's 2014 Administrative Law Conference at the Omni Shoreham Hotel in Washington, D.C., October 16 - 17, 2014.  Agenda topics include Interpreting the APA - Text and Common Law, Where Regulation and Innovation Converge, and the Developments in Administrative Law, Parts 1 & 2.  Visit our website to register.  Hope to see you there!

Recapping the Homeland Security Institute - Part 1

by Nina Hart

On August 21–22, 2014, the American Bar Association, Section of Administrative Law and Regulatory Practice hosted the Ninth Annual Homeland Security Institute in Washington, D.C.  The Institute included panels on a wide variety of issues including immigration, border security, the Foreign Corrupt Practices Act, the SAFETY Act, government contracting, and the DHS priorities for the upcoming years.  No post can possibly do justice to the myriad topics discussed.  Instead, this two-part piece will attempt to 1) set out several major themes of the Institute and 2) focus on issues in immigration law.

Part One

An area of emphasis for numerous speakers at the Institute was the role of technology in national security.  This post will provide an overview of some of the benefits and issues flagged by the panelists that come with the advent of increasingly sophisticated technology.  These reflections come from the following presentations: Law Enforcement Agenda 2014; The Foreign Corrupt Practices Act: Doing Business Internationally; Support Anti-Terrorism by Fostering Effective Technology (SAFETY) Act; and DHS General Counsel’s Office: New Technology and Homeland Security.  A copy of the full agenda is here.  

Importance of Information Sharing

Partnership and coordination are essential to effective law enforcement and improved national security.  Not only can such sharing increase efficiency of operations, but it can also lead to more successful operations.  For instance, the U.S. Customs & Border Patrol (CBP) relies heavily on the procurement of advanced information from airlines and other domestic and international agencies to identify travelers who pose national security risks.  If this information on travelers can be obtained and evaluated early, the travelers who require further clearance can be notified before boarding airplanes or arriving in the United States to only then be turned away.  With over 360 million travelers each year, or roughly one million per day, identifying the risks before travel occurs greatly reduces security risks and improves efficiency for all involved parties and agencies.

Additionally, in the context of criminal prosecutions, international coordination can greatly improve the chances of successful investigations.  For example, in one instance, a photo found in Boston was shared with state and international agencies, and ultimately led to the discovery of a child abuser in the Netherlands.  Information from the international investigation also led to the identification of a criminal partner in Massachusetts.

The Rise of Big Data and Improved Agency/Entity Performance

An improved ability to collect information and generate statistics is an increasingly important tool for both agencies and entities subject to regulation.  First, data collection can help agencies identify areas where their procedures could be improved and identify shortfalls in the office.  For instance, CBP offices are gathering data to assess the workload of their agents and determine how many staffers are required.  According to John Wagner, the Acting Assistant Commissioner in the Office of Field Operations, to function most effectively, the CBP requires nearly 4,700 additional officers.

Further, collection of data may help agencies identify whether substantives policies should be reconsidered.  For example, during one panel it was suggested that there might be a link between the United States’ policy of deporting alien felons and subsequent problems of human smuggling and trafficking.  In order to look more deeply into this and other law enforcement issues, the United States is working with nations including Honduras to collect and share information.  While it is too early to say what the data will show, collecting it is the first step toward making the requisite assessment.

Shifts in how agencies share information can also change larger trends in law enforcement and the way in which entities and individuals should consider and respond to liability risks.  For example, since the early 2000s, use of the Foreign Corrupt Practices Act (FCPA) has dramatically increased.  In part, this is due to agencies making this an enforcement priority.  However, as agencies have increased their ability to gather information and emphasized coordination, FCPA charges are often no longer brought alone but in the context of larger investigations (e.g. antitrust).  Additionally, because the agencies have more recently named senior executives in addition to the companies, the liability risks for the entities and individuals have greatly increased.  Thus, it becomes all the more important for companies to work with counsel early to develop monitoring plans and to consider making early disclosures as a show of good faith in order to mitigate the chances of or extent of liability.

Increased Cybersecurity Risks

Undoubtedly, improved technology helps law enforcement officials carry out their duties effectively and efficiently.  Enhanced technology, however, is not given solely to law enforcement but to the public at large, which increases the chance that individuals wishing to carry out cybercrimes will be successful.  As one panelist pointed out, an anti-malware program is often effective only once and has an average life span of one week because it is so easy and inexpensive to create new malware.  There is no easy resolution for this security threat, but panelists highlighted two main points.  First, all entities should have and continue to update their detection systems to both prevent security breaches and to respond quickly to breaches that do occur.  One resource available to entities is the best practices for security management guides published by the DHS.  Second, larger entities should be aware of the Support Anti-Terrorism by Fostering Effective Technologies Act (SAFETY Act).  This Act provides liability protection for entities that fall victim to physical or cyberterrorist attacks.

 

 

Brown Bag Lunch - Latest Developments at the Office of Special Counsel

The Section Government Personnel Committee is pleased to host a brown bag lunch entitled "Latest Developments at the Office of Special Counsel," October 6, 2014, from 12:00 - 1:30 p.m.  Confirmed Panelists include Louis Lopez, Associate Special Counsel, U.S. Office of Special Counsel; Shirine Moazed, Chief, Investigation and Prosecution Division, U.S. Office of Special Counsel; and Andrew J. Perlmutter, Attorney, Passman & Kaplan, P.C. (Moderator).  The event will be in the John Marshall Room of the ABA, Washington, DC office (1050 Connecticut Avenue).  Register online here.  Hope to see you there!

Section Member Receives Bar Association Award for Blog Contributions

by Lynn White

Elisabeth Ulmer, 2014 graduate of Villanova University School of Law, recently received the Irvin Stander Award for Excellence in Administrative Law from the Philadelphia Bar Association for her contributions to Notice and Comment while in law school.  Below she discusses the practical benefits of writing for Notice and Comment and how it will impact her future.

1.  How has writing for the blog influenced your understanding of administrative law?

Researching regulations for the blog reemphasized just how many different aspects of our everyday lives are regulated by administrative law and agencies.  This point also underscored how important it is for the public to participate in the rulemaking process and to share their comments, which many people currently do.

Furthermore, reading the rationales for rules provided me with concrete examples of how the administrative rulemaking process works.  For instance, some new rules are implemented to bring existing rules into accordance with older laws – such as the FDA’s move to update serving sizes in compliance with the Nutrition Labeling and Education Act of 1990.  Along those lines, I became more aware that the advances of technology frequently necessitate updated versions of rules – such as the FCC’s new rule permitting in-flight calls because that technology is now available.  Exploring the background of rules offered me greater insight into the ways in which policy and law intersect.

2.  Have you gained skills from writing for the blog? If so, what kind?

While writing for the blog, one skill that I am honing is the ability to take a 50-page regulation and condense it into about 500 words.  I must make strategic decisions about how to summarize a rule in a concise and understandable manner, and I enjoy figuring out how to write my blog in a way that will motivate people to check out the rule further and perhaps comment on it.

3.  How do you plan to use those skills in your career?

Writing will no doubt be a large part of my future, and today’s world is placing increasing priority on clear and concise writing.  I am confident that the skills I am developing while writing for the Notice and Comment blog will serve me well throughout my career.

 

If you would like to write for Notice and Comment, please e-mail Lynn White for details on how to become a contributor. 

 

 

Early Bird Rates! 2014 Administrative Law Conference

The Section will hold it's annual 2014 Administrative Law Conference at the Omni Shoreham Hotel in Washington, D.C., October 16-17, 2014.  The agenda will include the following sessions the Regulatory Flexibility Act: A Guide for the Perplexed, The Future of Agency Guidance Documents and Policy Statements, and TTIP Enhanced Stakeholder Input, to name a few.  Register here for the early bird rate until September 15, 2014.  Hope to see you there!

Brown Bag Lunch: Use & Abuse of Agency Guidance Documents

This Wednesday, July 18, 2014, the Section Rulemaking Committee will host a brown bag lunch entitled The Use & Abuse of Agency Guidance Documents from 12:00 to 1:30 p.m. in the John Marshall Room of the ABA's Washington, DC office (1050 Connecticut Ave, NW, 5th Floor).  Confirmed panelists include Professor Richard J. Pierce, Jr., George Washington University Law School, Paul Noe, Vice President for Public Policy, American Forest & Paper Association, and Ronald J. Tenpas, Partner, Morgan Lewis.  Brian Callanan, King & Spalding, will moderate the discussion.  On the heels of the Supreme Court's recent grant of certiorari in Perez v. Mortgage Bankers Association (D.C. Cir. 2013), this program will examine the legal and policy implications of federal agencies' use of guidance documents.  This program is complimentary, but space is limited.  Please e-mail Alisha Dixon at alisha.dixon@americanbar.org to register.  Hope to see you there!

Register for 9th Annual Homeland Security Law Institute Today

Registration is now open for the Section of Administrative Law and Regulatory Practice's 9th Annual Homeland Security Law Institute on August 21 & 22, 2014 at the Walter E. Washington Convention Center in Washington, DC.  This signature program is tailored specifically for those who practice Homeland Security law.  Topics this year include What to Expect from the Department in 2014, Homeland Security Legislative & Regulatory Outlook, Striking the Balance: Privacy & Security, and many more.  Visit the Institute webpage for more information!

Section Co-Hosting NLRB Update Webinar July 19, 2014

The Section of Administrative Law and Regulatory Practice will co-host a webinar July 9, 2014 from 1:00-2:30 p.m. with the Center for Professional Development and Section of Labor and Employment entitled NLRB Update: The Impact of Noel Canning, Proposed Representation Rules and Other Developments.  Panelists include H. Victoria Hedian of Abato, Rubenstein and Abato, P.A., James Bucking of Foley Hoag LLP, and Richard Griffin, the NLRB's General Counsel.  Panelists will discuss a variety of hot topics, including the Board's ruling concerning bargaining units in Specialty Healthcare and the issue of whether private college football players are employees and able to unionize.  Register here.

Brown Bag Lunch: Federal Sector Developments at EEOC

Please join us June 3, 2014 from 12:00 - 1:30 p.m. for a brown bag lunch on the latest federal sector developments at the Equal Employment Opportunity Commission, Office of Federal Operations.  This event is co-sponsored by the Sections of Administrative Law and Regulatory Practice and Government Operations and Personnel Committee.  Guests will include Joel Cavicchia, Supervising Attorney at the EEOC, Office of Federal Operations.  The event will be held at 1050 Connecticut Avenue, 5th Floor NW, Washington, DC in the John Marshall Room.  Click here to register.  We hope to see you there!

Brown Bag Lunch: MSPB CY 2013 Year in Review

On April 17, 2014, the Section Government Personnel Committee will host a brown bag lunch on the latest developments at the Merit Systems Protection Board, including a review of significant cases decided in the last year.  Confirmed panelists include:

• Bryan G. Polisuk, General Counsel, MSPB
• Ronald J. Weiss, Administrative Judge, Office of Regional Operations, MSPB
• Martin J. Crane, Attorney, Office of Appeals Counsel, MSPB
• Andrew J. Perlmutter (Moderator), Attorney, Passman & Kaplan, P.C.

Download the registration form here.  Hope to see you there!

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Section Membership Mix and Mingle Today!

Labor & Employment Committee Teleconference on OFCCP VEVRAA Final Rule

On March 26, 2014, the Section of Administrative Law and Regulatory Practice Committee will host a teleconference on the U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) new rules amending the implementing regulations of the Vietnam Era Veterans Readjustment Assistance Act of 1974.  The rules are designed to increase veterans' employment by requiring contractors to enhance their recruitment efforts and establish benchmarks for hiring veterans.  Certain provisions in the new rules take effect March 24, 2016.  The teleconference panelists includes: Keir Bickerstaffe, U.S. Department of Labor, Office of the Solicitor, Heather Ansley, VetsFirst, and Emily Bristol, Fortney Scott LLP.  The discussion will be moderated by Marc Antonetti, Partner in the Washington, D.C. office of BakerHostetler.  Download the registration form here.  Hope you can participate!

Save the Date: Homeland Security Law Institute May 29-30, 2014

The ABA Section of Administrative Law and Regulatory Practice will host the 9th Annual Homeland Security Law Institute May 29-30, 2014 at the Walter E. Washington Convention Center in Washington, DC.  Website and registration will be available shortly.  Contact us if you have any questions (202) 662-1582.  Hope to see you there!

Former Section Chair Ron Levin Testifies Before House Committee

by Lynn White

On February 11, 2014, the House Committee on the Judiciary, Subcommittee on Regulatory Reform, Commercial and Antitrust Law held a hearing on the Searching for and Cutting Regulations that are Unnecessarily Burdensome Act of 2014 (SCRUB Act).  The bill would establish a Retrospective Regulatory Review Commission (Commission) that would have broad authority to force the repeal or modification of agency rules.  Former Section Chair Ronald Levin, the William R. Orthwein Distinguished Professor of Law at Washington University School of Law, testified on the bill.

The primary purpose of the Commission would be to review regulations and determine whether they should be repealed or amended to reduce regulatory burdens.  The bill would establish a “cut-go” process that would require agencies to offset the cost of any new regulations by repealing or amending regulations identified by the Commission.  The Office of Management and Budget, Office of Information and Regulatory Affairs would also be required to review and certify the accuracy of agencies’ estimates of the costs of new rules.  House Judiciary Chairman Bob Goodlatte (R-VA) stated that “American taxpayers who are carrying the burden of federal regulations deserve better, and the SCRUB Act will cut unnecessary, costly federal regulations, which result in more jobs, better wage opportunities for workers and a more competitive America.”

Professor Levin expressed a number of concerns regarding the SCRUB Act.  Most notably, he said that it would violate the Appointments Clause of the Constitution, because most of the Commission's members would be appointed by legislative leaders.  Under long settled case law, he noted, such appointees cannot exercise significant authority under U.S. laws.  Professor Levin further contended that “the provisions defining the Commission’s powers would pose major risks of arbitrary decisionmaking.  Essentially, the Commission would have authority to order elimination or amendment of any agency rule that it considers unnecessarily burdensome, and no external body could provide a check on its decisions.  Under some circumstances a minority of the Commission could wield the same powers.”

Professor Levin also questioned the bill’s approach to retrospective review of agency rules.  The bill would require agencies to include a plan for retrospective regulatory review in the issuance of any new rule.  Professor Levin called this requirement “enormously overbroad.”  He recommended that the subcommittee wait until the Administrative Conference publishes an upcoming study on retrospective review before taking action on this issue. 

To learn more about the SCRUB Act, visit this website.