Category Archives: Law: Administrative Law

A Truly Muscular Reply Brief in a Case of Great Importance

One case I’ve been following with great interest is (well, was) Michaels v. Sessions in which by a strange turn of events the Supreme Court is being asked to decide whether
Matthew G. Whitaker is or is not the Attorney General.

The underlying matter isn’t in my wheelhouse, having to do with the constitutionality of a federal ban on possession of firearms by convicted felons. Michaels lost in the court of appeals, and duly asked the Supreme Court to hear his appeal via a petition for writ of certiori. While that was pending, Trump forced out Sessions; whether Sessions legally resigned or was fired is actually a not-irrelevant issue. Trump then tapped Whitaker to take over the job of Attorney General, purporting to exercise power delegated under the Vacancies Act.

The Vacancies act is a mire of constitutional and structural issues, but suffice it for now to say that it does give the President vast authority to fill vacancies with a wide variety of government employees, but it also contains exceptions, one of which very arguably applies to the Attorney General’s office becuase there is a specific statute that provides for succession in the AG’s office. Under that statute Rod Rothstein, the #2 in the department, would automatically becoming the Acting Attorney General until a successor was properly nominated and confirmed (or, I presume, given an interim appointment–an option that the Senate has quietly foreclosed by having pro-forma sessions every few days during the recess thus preventing the Constitutional trigger that permits interim appointments).

When a person sues the United States about a regulation, it is common to caption (that’s lawyer for “title”) the case with the name of the movant and the government official who heads the agency. When there is turnover at the head of an agency, as there often is, it is usually routine for the name of the case to change too — on request of a party, the court just amends the caption of the case.

That is what happened with the petition for certioria — until Michaels’s lawyers objected. Earlier this month they filed a “Motion to Substitute” in the Supreme Court in which they asked the Court to rule that the case should be captioned “Michaels v. Rothstein” rather than “Michaels v. Whittaker” as Rothstein, not Whittaker, was in fact the Acting Attorney General. Needless to say, the government objected. Michael’s lawyers replied with one of the most muscular briefs I’ve ever read. If you are a lawyer or law student, this is a must-read.

The Supreme Court has not yet ruled, and it could do so without a hearing if it chose to do so.

Posted in Law: Administrative Law, Law: Constitutional Law, Law: The Supremes | Leave a comment

Yes, the CRA is a Way to Restore Net Neutrality

National treasure Harold Feld explains why the CRA really would be a means of restoring the net neutrality rule.

Strangely, it appears some folks actually doubted this as a theoretical matter. Of course the House won’t likely vote to overturn the FCC, so this is a bit academic. But then, I am an academic…

Posted in Law: Administrative Law, Law: Internet Law | 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

I Did

Andrew Rudalevige, writing in the Monkey Cage, asks King v. Burwell: Who knew administrative law could be so much fun?

As a long-time teacher of Administrative Law I’m continually amazed that people say Ad Law is dull. It may be complicated and sometimes verging on incoherent, but it’s not dull. And it really matters.

Only about 50% of law students nationally take Administrative Law (it is not on the bar exam in most states, although New York just added it), yet Administrative Law (and Accounting) are routinely among the courses that lawyers later say they regret not taking. Somehow this never comes up in ABA reform movements, perhaps because they are so dominated by litigators.

Posted in Law: Administrative Law, Law: Practice | 7 Comments

Adlaw: The Video

The Chevron Two-Step:

via Above the Law.

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NSA Responds to Petition to Conduct Rulemaking on Domestic Surveillance

Back in June I signed on to EPIC‘s request to the NSA (formally a ‘petition’ under 5 U.S.C. § 553(e)). Here is the text:

Dear General Alexander and Secretary Hagel:

The undersigned individuals and organizations, concerned about the rule of law and the protection of Constitutional freedoms, hereby petition the National Security Agency to conduct a public rulemaking on the agency’s monitoring and collection of communications traffic within the United States. 5 U.S.C. § 553(e).

We believe that the NSA’s collection of domestic communications contravenes the First and Fourth Amendments to the United States Constitution, and violates several federal privacy laws, including the Privacy Act of 1974, and the Foreign Intelligence Surveillance Act of 1978 as amended.

The NSA’s collection of solely domestic communications, which has been acknowledged by the President, the Director of National Intelligence, and the Chair and Ranking Member of the Senate Select Committee on Intelligence, also constitutes a legislative rule that “substantively affects the public to a degree sufficient to implicate the policy interests animating notice-and-comment rulemaking” under the Administrative Procedure Act. EPIC v. DHS, 653 F.3d 1, 6 (D.C. Cir. 2011). Accordingly, the NSA’s collection of domestic communications, absent the opportunity for public comment, is unlawful.

We hereby petition the National Security Agency, a component of the Department of Defense, for relief. We ask the NSA to immediately suspend collection of solely domestic communications pending the completion of a public rulemaking as required by law.

We intend to renew our request each week until we receive your response.

The NSA Responded. No prizes for guessing what they said:
Continue reading

Posted in Civil Liberties, Law: Administrative Law | Leave a comment