Jennifer Nou

Miami-based #UChicagoLaw alums — come join @adamchilton.bsky.social & me tonight to discuss the future of presidential administration

I've been struggling with when to post this draft article, but last week's news about Trump firing the Commissioner of Labor Statistics convinced me I better share it now. It unpacks both the promise and the peril of what I call "informational administration."

papers.ssrn.com/sol3/papers....

Over at the Notice and Comment blog, today's Ad Law Reading Room covers two pieces: "Presidential Brokering in the Regulatory State" by @jennifernou.bsky.social and "The Chadha Presidency" by @joshchafetz.bsky.social. Check it out! www.yalejreg.com/nc/ad-law-re...

Now on SSRN: How do White House policy councils shape the president's highest priority rules? What is their relationship to OIRA and regulatory review? Part of an effort to understand the rise of presidential power through the institutional presidency: papers.ssrn.com/sol3/papers....

So important to be talking across disciplines, especially in these times.

Transcending Partisanship in Regulatory Reform | The Regulatory Review Graham’s new book highlights the challenges of and opportunities for regulatory reform.

“‘Regulatory Reform from Nixon to Biden’ … effectively cuts through the partisan chatter of the Beltway to offer clear-eyed lessons about how we got to where we are and what still needs to be done to confront the emerging regulatory challenges of the day,” writes Prof. @jennifernou.bsky.social.

Ask me Anything About the President’s Executive Powers: Q&A with Profs. Jennifer Nou and David A. Strauss What powers does the president of the United States actually have? How can these executive powers be used to shape policy, respond to crises, or in...

Chicago folks: Come ask David Strauss & me anything tomorrow about the President's executive powers! Needless to say, lots to discuss.

RSVP here: events.uchicago.edu/event/246256...

Omg I’ve been worrying about the cases Ann mentions like Sherley v Sebelius in DC circuit these past few months (holding that agency is exempt from APA when directed by Pres) - so wrongly decided.

Just as OIRA has asserted control over the Federal Election Commission

Also time for judges to deny any presumption of regularity. Presume irregularity

Join us for this critical discussion. Thursday, February 27, 12:30-2:00 PM ET Speakers: Nicholas Bednar (University of Minnesota Law School), Donald Kettl (University of Maryland), Loren DeJonge Schulman (Telos Lab, formerly Office of Management and Budget) Moderator: Don Moynihan (University of Michigan) This webinar, the first of a series hosted by APPAM about changes in the federal government, focuses on how the Trump administration has sought to weaken federal employee protections, while downsizing programs and entire agencies. The webinar will explore the legality of actions taken thus far, and what might happen next, considering the effect on federal employees, and public service provision. Time will be reserved for audience questions. This webinar is free and open to all.

Hi folks:
With @nicholasbednar.bsky.social, @lorenraeds.bsky.social & Don Kettl, I will be talking at an @appam.bsky.social about the attack on public employees and government programs, Thursday, 2/27, 12.30-2pm EST.

Free registration.
www.appam.org/events/webin...

OIRA's going to need resources. True, there will likely be fewer rules to review (see the 10-for-1 EO), but implementing this doozy, alongside reg budgets, restarting the review of tax regs all on top of its Paperwork Reduction Act duties is...a lot

Requirement that independent agencies regularly consult with OMB, "the White House Domestic Policy Council, and...National Economic Council" shows an intent to influence agency rules ex ante not just ex post through OIRA review (am writing a paper on this, which now feels kind of quaint)

On OMB budgetary oversight, "adjustments to apportionments may prohibit independent regulatory agencies from expending appropriations...so long as consistent with law." Calling for illegal impoundment while pretending you're following the law is...something

"The President and the Attorney General...shall provide authoritative interpretations of law for the executive branch." Given that provision is aimed at federal "employees," am guessing its meant to rein in staff legal guidance and the exercise of subdelegated authorities

But the carve out for the Federal Reserve's monetary policy functions shows just strong that norm (amazingly) still is

First, on coverage: it goes out of its way to include the Federal Election Commission - very ominous given that Trump just fired the chair. Kind of obvious why we don't Trump anywhere near campaign finance regs

Ensuring Accountability for All Agencies By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered:

Many saw the extension of OIRA review to independent regulatory agencies coming, but this EO does so much more... 🧵

www.whitehouse.gov/presidential...

Lots of bad, but this is very bad.

THE IMMIGRATION SUBPOENA POWER - Columbia Law Review Introduction After a series of public losses in its war on “sanctuary” cities, the first Trump Administration deployed the immigration subpoena, a new and formidable weapon in this fight. It used thes...

I'm excited to share my article, The Immigration Subpoena Power, which explores the way that ICE uses administrative subpoenas for civil immigration enforcement and the concerns that these practices raise. Many thanks to those who helped improve it (1/2)
columbialawreview.org/content/the-...

Some wondered whether Trump would extend OIRA review to independent regulatory agencies. While he didn’t do so in this EO, he could still try to use the Congressional Review Act as a hook for oversight as he did in his first term

Also reinstates OIRA review of tax regulations as @khickmanjd.bsky.social observes. Robust debate about how benefit-cost analysis could be sensibly applied here, but more EOP oversight is probably a good thing

No regulation shall be issued unless included in recent version of the Unified Regulatory Agenda. Could amount to a huge drag on new regs because the Agenda is only published *semiannually.* EO says Agenda can be "updated," but will be another procedural hurdle regardless

Calls for revocation of Circular A4, which provides guidance on benefit-cost analysis. Will reinstate previous Bush-era version, which is better than none at all. The Regulatory Right to Know Act arguably requires notice-and-comment for a revocation and reinstatement, but not holding my breath

10-for-1 includes a broader definition of "rules" than the 2-for-1: "regulations, rules, memoranda, administrative orders, guidance documents, policy statements, and interagency agreements." Lots for FAQs to clean up to minimize nonsense (we don't want agencies to cooperate?)

Some quick reactions to Trump's reg review EO 1/x:

www.presidency.ucsb.edu/documents/ex...

The FAQs for this are going to be...interesting

Given recent news, I’m happy to share a working paper quantifying presidential deviations from enacted budgets from 1958-2018. Analyzing agency/bureau level data on spending and presidential requests, I find that presidents spend less than appropriated when they desire to.

Yes. Looks like OMB’s deliberative clearance process for M-memos is not yet up and running (or seriously compromsied)