The Regulatory Week in Review: February 3, 2017

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President Trump nominates Judge Neil Gorsuch to the Supreme Court, Congress uses the Congressional Review Act, and more…

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IN THE NEWS

  • President Trump announced his nomination of Judge Neil Gorsuch, who currently serves on the U.S. Court of Appeals for the Tenth Circuit, for the U.S. Supreme Court. Confirmation of Judge Gorsuch will require 60 votes to overcome a possible filibuster by Senate Democrats, but Senator Mitch McConnell (R-Ky.) has reportedly considered using the so-called “nuclear option” that would change the Senate’s rules to require only a majority vote to confirm Judge Gorsuch. Senator Chuck Schumer (D-N.Y.) has reportedly stated that to receive the support of Senate Democrats, Judge Gorsuch will need to “prove himself to be within the legal mainstream.”
  • President Trump issued an executive order directing executive departments and agencies to identify two rules for elimination every time a new one is promulgated. The order, which President Trump reportedly said was geared toward helping businesses both large and small, also directs agency heads to ensure “that the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero.”
  • President Trump issued an executive order that suspended the entry of refugees into the United States for 120 days, barred the entry of Syrian refugees indefinitely, and barred the entry of citizens from seven majority-Muslim countries for 90 days. The order prompted large crowds of protestors, and lead to several legal challenges that resulted in parts of the order being blocked. Sally Yates, who was serving as acting Attorney General at the time, directed the U.S. Department of Justice to not defend legal challenges to the ban, prompting President Trump to fire her.
  • The U.S. Senate voted 56-43 to confirm Rex Tillerson—who lacks traditional government experience, but who oversaw operations on six continents as chief executive officer of Exxon Mobil—as Secretary of State, with the Senate casting more votes against Tillerson than the body has ever cast against previous Secretary of State nominees.
  • The Senate Judiciary Committee voted 11-9 along party lines to confirm Senator Jeff Sessions (R-Ala.) as Attorney General—a vote that came two days after President Trump fired Acting Attorney General Sally Yates, and which followed two days of confirmation hearings in which Senator Sessions was questioned on his civil rights record, among other topics.
  • President Donald Trump announced that his administration will continue to enforce an executive order issued by President Obama in 2014, which bars the federal government and federal contractors from discriminating on the basis of sexual orientation—an announcement which reportedly divided moderate and more conservative Republicans, and which reportedly has not eased the fears of LGBTQ advocacy groups that the Trump administration will enact policies discriminating against their constituents.
  • Rep. Andy Biggs (R-Ariz.) introduced legislation that would create a new federal court of appeals, severing Arizona, Alaska, Idaho, Montana, and Nevada from the U.S. Court of Appeals for the Ninth Circuit—which some commentators have at times considered to have a liberal tilt—and place those states under a new U.S. Court of Appeals for the Twelfth Circuit. Rep Biggs stated that the Ninth Circuit “does not reflect the values nor laws of” Arizona, and that it also “cannot handle the number of states currently entrapped within its jurisdiction, causing access to justice to be delayed.”

WHAT WE’RE READING THIS WEEK

  • In a 2011 paper published in the Administrative Law Review, Adam Finkel of the University of Pennsylvania Law School and Jason W. Sullivan of Irell & Manella LLP discussed how to interpret the “substantially similar” requirement in the Congressional Review Act (CRA), which prevents agencies from revising a rule in “substantially the same form” if Congress vetoes that rule using a CRA vote. Using a cost-benefit approach, the article concludes that “the outlook is not nearly as bleak as the agency officials and earlier scholarship indicate: an agency may reissue a similar-appearing regulation in the same substantive area as a vetoed rule as long as the new rule has significantly greater benefits and/or significantly lower costs than the original rule.”
  • In a recent article published as part of the University of Pennsylvania Law Review’s Symposium Issue on “the bounds of executive discretion in the regulatory state,” University of Pennsylvania Law Professor and Director of the Penn Program on Regulation Cary Coglianese, along with former Penn Law student Kristin Firth, examine empirically how public perception is affected by the President’s active involvement in directing the work of federal agencies, and find—among other things—that the public more readily attributes failures to the President than successes.
  • In a recent essay, Elizabeth Ferris, a senior fellow at the Brookings Institution, argues that President Trump’s executive order barring the entry of all refugees presents a threat to the international system for responding to refugees. Ferris points out that the United States has played a major role in the success of the system, which is based on the United Nations’ 1951 Refugee Convention, and contends that President Trump’s “America First” policy could have a domino effect if other nations decide to stop accepting refugees.