Saturday, January 16, 2021

Three Ways To Address Midnight Rules, Richard J. Pierce, Jr. - Yale Journal on Regulation


Issuing regulations under the Administrative Procedure Act's Notice and Comment procedure is a protracted process.  A President's four year term is scarcely enough time to issue significant Rules.  And there is always a rush to enact Rules before a new, perhaps hostile, administration takes office.
George Washington law professor Richard Pierce notes three options.  I wonder about a fourth category: those issued by simultaneous Presidential Proclamation and Rule bypassing notice and comment under claims such as emergency.  This method was used by the Trump administration to first obstruct, then virtually bar asylum applicants who came across the southern border.

Pierce's advice is:
The Biden administration has three potential ways of accomplishing that task—use of the Congressional Review Act (CRA), rescission of rules, and letting the Trump rules die a natural death in court. Each option has advantages and disadvantages. The optimum strategy undoubtedly would consist of a combination of the three in which each option is carefully considered in the context of each rule. I believe, however, that the option of letting a rule die a natural death in court is the best option in many cases.
OTHERWISE: Three Ways To Address Midnight Rules, Richard J. Pierce, Jr. - Yale Journal on Regulation

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