Stay ConnectedThe Regulatory Transparency Project is a nonprofit, nonpartisan effort dedicated to fostering discussion and a better understanding of regulatory policies.
On RTP’s Fourth Branch Podcast, leading experts discuss the pros and cons of government regulations and explain how they affect everyday life for Americans.
In this episode, Jeff Holmstead and Megan Herzog discuss the recent rule change from the EPA on emissions standards. The Affordable Clean Energy plan replaces the Obama-era Clean Power Plan. The reduction in admissions standards has raised new questions: what does the Clean Air Act authorize EPA to regulate, how much discretion does EPA have in regulating emissions, which plan more closely fits the intent of the original law? These and other questions are taken up in this engaging discussion.
Featuring:
- Jeffrey R. Holmstead, Partner, Bracewell LLP
- Megan Herzog, Special Assistant Attorney General, Massachusetts Attorney General's Office
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In this inaugural Tech Roundup podcast, experts discuss various questions raised by "deep fake" technology, in which machine learning algorithms are used to create synthetic videos and photos. What are the potential societal and political implications of their emergence? What challenges might they present to regulators?
Join Professor Robert Chesney (co-author of "Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security"), Matthew Feeney, and Will Rinehart as they explore the implications of this emerging technology.
Featuring:
- Robert M. Chesney, James A. Baker III Chair in the Rule of Law and World Affairs and Associate Dean for Academic Affairs, The University of Texas at Austin School of Law
- Matthew Feeney, Director, Project on Emerging Technologies, Cato Institute
- [Moderator] Will Rinehart, Director of Technology and Innovation Policy, American Action Forum
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In 2018, the California Superior Court announced a new test for determining whether a worker is an employee or an independent contractor. In this Explainer podcast episode, Luke Wake of the National Federation of Independent Businesses breaks down the case and its implications for small business owners in California.
Featuring:
- Luke Wake, Senior Staff Attorney, NFIB Small Business Legal Center
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In this inaugural episode of the Regulatory Transparency Project's Explainer podcast series, Ann Carlson and James Coleman discuss the merits and implications of the Green New Deal.
What is the Green New Deal, what are its aims, and how might it achieve them? Is the proposal realistic? How does it compare to landmark pieces of environmental legislation from the past decades?
These and other questions are explored in this short podcast.
Featuring:
- Ann Carlson, Shirley Shapiro Professor of Environmental Law and Faculty Co-Director of the Emmett Institute on Climate Change and the Environment, UCLA School of Law
- James Coleman, Associate Professor of Law, Southern Methodist University Dedman School of Law
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Title III of the Americans with Disabilities Act requires public accommodations be accessible to the disabled community. Since its enactment in 1991, it has been understood that any store, restaurant, theater, hotel facility, school, or other building private entities own or lease and make available to the public meet certain requirements for disability access.
Plaintiffs attorneys have been aggressive in enforcing the ADA against all types of physical businesses for years. And now we are seeing a new frontier of litigation - websites. Banks, hotels, service providers, and retailers of all types are beginning to see lawsuits alleging their websites are not accessible to the disabled.
Karen Harned will provide the background on this new trend in ADA litigation, the current state of the law, and highlight a case the Supreme Court is being asked to take this next term on the issue.
Featuring:
- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
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The strictures of the Appointments Clause are receiving renewed attention in the courts, including the Supreme Court. A year ago, the High Court ruled that the SEC’s administrative law judges must be appointed in conformity with this clause, and it has placed another Appointments Clause case on the docket for its next term. In Buckley v. Valeo (1976), the Court held that rulemaking was a significant government power such that rulemakers must be appointed in conformity with the Clause, but it had no reason to address whether rules must be issued by principal officers or could also be issued by inferior officers.
On behalf of nine vaping retailers, Pacific Legal Foundation is challenging the FDA’s "Deeming Rule" issued by a career employee, Leslie Kux. A new research study of HHS rules over a 17-year period, also by PLF, found that nearly two-thirds of HHS regulations were issued by non-Senate-confirmed staff. Within FDA, 98% of its rules (1,860 of them) were issued by civil service employees in career positions like that held by Ms. Kux. In the pending litigation, FDA argues that Ms. Kux was also an inferior officer when she issued rules, and that inferior officers may lawfully issue such binding rules, even if no supervisor may subsequently change them without a new rulemaking process.
The speakers examine a variety of topics related to the subdelegation of rulemaking power, including the creation of offices by department heads and who within those offices can lawfully exercise rulemaking power.
Featuring:
Todd F. Gaziano, Chief of Legal Policy and Strategic Research and Director, Center for the Separation of Powers, Pacific Legal Foundation
Prof. Anne Joseph O'Connell, Adelbert H. Sweet Professor of Law, Stanford Law School
[Moderator] Prof. Kristin E. Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law School
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The Federal Reserve plays a central role in the nation’s payment systems. Reserve banks keep currency in circulation to meet demand, provide check collection services to banks, operate payment systems, and provide financial services to the United States government and foreign institutions.
The Federal Reserve is currently exploring ways to support faster payments in the U.S. The potential actions would facilitate real-time interbank settlement of faster payments. Proponents feel the actions may assist smaller banks and credit unions to service local communities, while detractors raise concerns about interoperability, the ability to exchange messages among different instant-payment systems, and other issues. This teleforum will address these topics and much more.
Featuring:
Aaron Klein, Fellow in Economic Studies and Policy Director, Center on Regulation and Markets, Brookings Institution
George Selgin, Senior Fellow and Director, Center for Monetary and Financial Alternatives, Cato Institute
[Moderator] J.W. Verret, Associate Professor of Law, Antonin Scalia Law School, George Mason University
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On June 18, 2019, the Federalist Society's Article I Initiative and Regulatory Transparency Project hosted a panel on "Agency Rulemaking: Unnecessary Delegation or Indispensable Assistance?" at the National Press Club in Washington, DC.
In his recent article, “Strategic Institutional Positioning: How We Have Come to Generate Environmental Law Without Congress,” published in the Texas A&M Law Review, Donald Kochan lays out the argument that delegation of authority to agencies serves the interests of both sides of Congress. Those ostensibly elected to oppose further regulation can argue that any proposed rule changes are out of their control. Conversely, representatives elected to increase regulation can blame agency heads for not following the intent of the authorizing statute. However, both sides avoid blame by the electorate.
What are the advantages and disadvantages of such a system? Should specialized bureaucrats do the lion’s share of rulemaking? Or should elected Senators and Congressman, often without the same level of expertise, write the rules that govern our nation?
Featuring:
- Andrew Grossman, Partner, Baker & Hostetler LLP and Adjunct Scholar, The Cato Institute
- Prof. Donald Kochan, Professor in Law and the Associate Dean for Research & Faculty Development, Chapman University Dale E. Fowler School of Law
- Prof. Robert Percival, Professor of Law and Director, Environmental Law Program, University of Maryland School of Law
- Brianne Gorod, Chief Counsel, Constitutional Accountability Center
- [Moderator] Jeff Holmstead, Partner, Bracewell LLP
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Last week the Supreme Court decided the much-anticipated Kisor v. Wilkie case. The Court had granted certiorari in Kisor to decide whether to overrule Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), and Auer v. Robbins, 519 U.S. 452 (1997). Seminole Rock and Auer are often cited for the proposition that when an administrative agency promulgates a regulation and the regulation is ambiguous, a reviewing court must give “controlling weight” to the agency’s interpretation of the regulation unless the interpretation is plainly erroneous or is inconsistent with the regulation. A number of the Court’s members had cast doubt on the soundness of the Seminole Rock/Auer deference doctrine in recent years, and many observers have predicted that the doctrine’s days are numbered.
Karen Harned and Stephen Vaden discuss that morning’s highly-fractured decision in Kisor and its potential implications — including for the Chevron deference doctrine that applies to agency interpretations of statutory provisions.
Featuring:
- Karen Harned, Executive Director, NFIB Small Business Legal Center
- Stephen Vaden, General Counsel, United States Department of Agriculture
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The U.S. Supreme Court’s decision in Gundy v. United States disappointed some observers who were hoping that the Court would use the case to reinvigorate the nondelegation doctrine. Will the 4-1-3 decision here leave the status quo intact or embolden lower courts to identify more nondelegation problems? Will Congress view this outcome as an invitation to delegate more decisions about the scope of the criminal law to the Attorney General? Do Justice Alito’s concurrence and the strong dissent from Justice Gorsuch (joined by The Chief Justice and Justice Thomas) signal that the nondelegation doctrine will soon be revived? These and other questions are discussed in this podcast.
Featuring:
- Mark Chenoweth, Executive Director and General Counsel, New Civil Liberties Alliance
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