Author Archives: Michael Froomkin

Police Demand Shop Install Surveillance, Give Cops Full Feed, and also Right to Ban Customers

This story in the New Times seems outrageous:

But in September, the city suddenly declared the store a nuisance, citing drug deals made nearby. And the Nuisance Abatement Board made a long series of demands, including one that struck Corine as beyond strange: To get back in good standing, she needed to install 24/7 security cameras that would allow police constant live-feed access to the store.

The board also required Corine give police the power to remove people from her property. Officers quickly made a list of people the police department had decided were banned from Bradley’s and began arresting people for trespassing, though Corine says they were just shopping.

via Bradley's Market In Overtown Sues City After Police Demand Constant Surveillance, Boot Customers | Miami New Times.

There is a slight twist to the backstory: after a generation or two as one of Miami’s most blighted neighborhoods, Overtown is now suddenly the target of redevelopment. So part of the story may be an attempt to drive out a store that is surrounded by vacant lots in order to make up a nice parcel….

Posted in Miami, Surveillance | Leave a comment

Rep. Ros-Lehtinen Ought to Become a Democrat

Ros-Lehtinen Statement on Her Intention To Vote NO on Revised AHCA.

Yes, she’d be one of the most right-wing members of the caucus especially on foreign policy (“Cuba”), but surely her sanity would take less of a beating. She’s already a leader on gay and trans-gender rights. Changing parties would let her vote for the childcare and medical funds her district needs.

Rep. Ros-Lehtinen has been a leader in opposing destruction of Obamacare. Others followed. She has a chance to be a leader on party-switching too.

Posted in Politics: FL-25/FL-27, Trump | 1 Comment

JOTWELL Summer Job for UM Law Student

Jotwell, the online journal of reviews of recent faculty scholarship relating to the law (http://jowell.com), needs a UMiami Law Student Editor for 25-30 hours per week during the summer.

The student editor is a blend of a substantive editor and a managing editor. Jotwell uses WordPress to publish, but the web publishing platform is easy to learn, so no experience is needed.

The ideal candidate will be a current University of Miami School of Law 1L, or 2L, who is organized, a careful editor, and enjoys reading legal scholarship. The job starts soon after exams end but you can have time off once there is enough edited material ready to cover the break. Candidates able to commit to continue working 7-10 hours a week during the 2017-18 academic year will have an advantage.

If you are interested, please email your c.v. and a copy of your transcript (unofficial is fine) to my gmail.com account, which is myfirstname.mylastname@gmail.com (do the substitution). Please put “JOTWELL Summer 2017” and your name in the subject line.

If you have a non-legal writing sample, or a law school paper (other than LCOMM) please attach that to your email.

Posted in Jotwell | Leave a comment

The (Rare?) Case of a Regulation that Does the Opposite of a Statute

US personal tax returns are normally due on April 15; because the 15th fell on a Saturday this year, the IRS extended the date to April 18. That date got a lot of publicity. What got almost no publicity, however, is that Congress changed the date for filing the much more rare Reports of Foreign Bank and Financial Accounts (FBAR). The due date for the FBAR got moved from its usual date of June 30 to April 15 (or, this year, April 18).

Congress could not have been clearer in Section 2006(b)(11) of the Surface Transportation and Veterans Health Care Choice Improvement Act of 2015, Public Law 114-41,

The due date of FinCEN Report 114 (relating to Report of Foreign Bank and Financial Accounts) shall be April 15 [[Page 129 STAT. 459]] with a maximum extension for a 6-month period ending on October 15 and with provision for an extension under rules similar to the rules in Treas. Reg. section 1.6081-5. For any taxpayer required to file such Form for the first time, any penalty for failure to timely request for, or file, an extension, may be waived by the Secretary.

Whether there is some deeper purpose beyond tidiness at work here I leave to the tax lawyers. But if like me you have a foreign bank account (leftover in my case from a period working abroad) and have a tendency to file tax returns rather close to the deadline, you could easily miss the new earlier due date for reporting the foreign account’s existence. Never fear–Treasury has your back: even if this is not the first time you have been required to file an FBAR Treasury has unilaterally given you an automatic extension.

According to the Fincen web site,

The new annual due date for filing Reports of Foreign Bank and Financial Accounts (FBAR) for foreign financial accounts is April 15. This date change was mandated by the Surface Transportation and Veterans Health Care Choice Improvement Act of 2015, Public Law 114-41 (the Act). Specifically, section 2006(b)(11) of the Act changes the FBAR due date to April 15 to coincide with the Federal income tax filing season. The Act also mandates a maximum six-month extension of the filing deadline. To implement the statute with minimal burden to the public and FinCEN, FinCEN will grant filers failing to meet the FBAR annual due date of April 15 an automatic extension to October 15 each year. Accordingly, specific requests for this extension are not required. (Please note: The due date for FBAR filings for foreign financial accounts maintained during calendar year 2016 is April 18, 2017, consistent with the Federal income tax due date.)

Although undoubtedly well-intentioned and useful (the agency likely has better things to do than to put many people unaware of the deadline change into violation and expend resources punishing them in some way) this is nonetheless a rather weird rule given the statute.

Agency regulatory power exists to the extent created by statute (or, perhaps and exceptionally, when deriving directly from inherent Presidential power). It follows, quite obviously, that agencies cannot act in opposition to a statute, for that would be not only arbitrary and capricious but ultra vires as well. Nor, we learned from Youngstown Sheet & Tube v. Sawyer (The Steel Seizure Case), 343 U.S. 579 (1952), can the President act in the teeth of a clear statutory command, save perhaps when applying an equally clear Constitutionally delegated power.

Some people argue that President Obama violated this basic principle when ordering ICE to deprioritize enforcement against certain classes of undocumented persons.1 But that was, in form and I would argue in substance as well, not a case of totally undermining the statute, but rather a Presidential decision to choose among priorities in a world in which it was clear resources were inadequate to fully enforce all the rules Congress had asked ICE to enforce. What is more, in form although perhaps not in substance, the Obama regulation did not require agents to refrain from deporting the favored classes of non-dangerous aliens; it merely suggested rather strongly that this would be a good idea.

Given this context, Treasury’s FBAR extension rule seems a little weird. There can be little doubt that the automatic deadline extension effectively not only undermines the statutory command that there be an earlier due date but in practice extends the former June 30 deadline to October 15. It does so by paying lip service to the deadline–it is officially April 15 (or 18)–but gives everyone effected an automatic extension whether or not they ask for one.

I think this may be too cute. But I also think it is unchallengable, since no one has standing to complain: the people affected by the rule are not harmed in any way, and nothing stops them from filing by the 18th if they want to. And no one else has a legal interest. Perhaps Congress could sue, as the House did over the Obama regulations, but the issue is far too trivial to merit that response.

It’s not unusual to see an agency rule that seems to go farther than a statute allows; such is the bread and butter of administrative-law-based challenges to regulations. It’s a lot stranger to see an administrative pronouncement that not only undermines a statutory command but in fact does the opposite.


  1. Others find the use of public non-enforcement to be potentially legitimizing, see my colleague Leigh Osovsky’s The Case for Categorical Nonenforcement, 69 TAX L. REV. 73 (2015), (reviewed in JOTWELL: The Journal of Things We Like (Lots), Oct. 16, 2015).  

Posted in Law: Administrative Law, Law: Tax | 1 Comment

Phenomenal

Perfect

Posted in Completely Different, Trump | Leave a comment

#WeRobot2017

We Robot is happening today and tomorrow. Although I founded the WE Robot conference, for the first time I am not able to attend, and indeed had to withdraw a paper I felt pretty good about. Fortunately the live stream is very good. The papers are great, as usual, but it feels so very weird to be only a remote participant, especially with so many familiar faces on camera and also familiar voices off-camera. As a viewer from a distance, on the one hand I’m delighted that the conference has momentum and a life of its own. On the other hand, I would have loved to be there, especially as it’s taking place at Yale. A lot of a great conference is the hallways, and that of course you don’t get from remote participation, not even Twitter.

See you next year!

Posted in Robots, Talks & Conferences | Leave a comment