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Chevron Deference: A Primer [September 19, 2017]
"Congress has created numerous administrative agencies to implement and enforce delegated regulatory authority. Federal statutes define the scope and reach of agencies' power, granting them discretion to, for example, promulgate regulations, conduct adjudications, issue licenses, and impose sanctions for violations of the law. The Administrative Procedure Act (APA) confers upon the judiciary an important role in policing these statutory boundaries, directing federal courts to 'set aside agency action' that is 'not in accordance with law' or 'in excess of statutory jurisdiction, authority, or limitations.' Courts will thus invalidate an action that exceeds an agency's statutory authorization or otherwise violates the law. Of course, in exercising its statutory authorities, an agency necessarily must determine what the various statutes that govern its actions mean. This includes statutes the agency specifically is charged with administering as well as laws that apply broadly to all or most agencies."
Library of Congress. Congressional Research Service
Brannon, Valerie C.; Cole, Jared P.
2017-09-19
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Deference and its Discontents: Will the Supreme Court Overrule Chevron? [October 11, 2018]
"Less than a week before announcing his retirement, Justice Anthony Kennedy called for the Supreme Court to 'reconsider' the seminal administrative law doctrine known as Chevron deference in a concurring opinion in Pereira v. Sessions. The doctrine, established by the Court's opinion in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., instructs that when reviewing certain agency interpretations of statutes,courts should defer to the agency's construction if the statute is ambiguous and the agency's construction is reasonable. Some members of the Court--namely, Justices Clarence Thomas and Neil Gorsuch--have called for reconsideration of Chevron. In addition, the newest Justice, Brett Kavanaugh, was a leading critic of the doctrine during his tenure on the U.S. Court of Appeals for the D.C. Circuit. The selection of Justice Kavanaugh has led commentators to question whether the Court might reconsider Chevron in the near future. As the Supreme Court's new term began this month, the Court confronted the issue of agency deference in Nielsen v. Preap, although Chevron itself did not come up during oral argument. Recent cases suggest, however, that the Court might continue to reaffirm the case's vitality, and if the Court were to reassess Chevron, it might be to narrow the circumstances under which the doctrine applies in lieu of jettisoning it."
Library of Congress. Congressional Research Service
Brannon, Valerie C.; Cole, Jared P.
2018-10-11
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Special Counsel Investigations: History, Authority, Appointment and Removal [Updated March 13, 2019]
From the Document: "The Constitution vests Congress with the legislative power, which includes authority to establish federal agencies and conduct oversight of those entities. Criminal investigations and prosecutions, however, are generally regarded as core executive functions assigned to the executive branch. Because of the potential conflicts of interest that may arise when the executive branch investigates itself, there have often been calls for criminal investigations by prosecutors with independence from the executive branch. In response, Congress and the U.S. Department of Justice (DOJ) have used both statutory and regulatory mechanisms to establish a process for such inquiries. These frameworks have aimed to balance the competing goals of independence and accountability with respect to inquiries of executive branch officials."
Library of Congress. Congressional Research Service
Brown, Cynthia; Cole, Jared P.
2019-03-13
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Clery Act: Requirements and Legal Issues [July 31, 2019]
From the Document: "Colleges, universities, and other institutions of higher education (IHEs) face several federal legal requirements that pertain to the safety and security of students. One statute that addresses such issues is the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act). The Clery Act applies to all domestic IHEs that participate in Title IV of the Higher Education Act's student financial assistance programs. The Clery Act requires covered IHEs to publish a report (by October 1 of each year) disclosing campus crime statistics and campus security policies. The Department of Education (ED) has promulgated regulations implementing the Clery Act. ED's Office of Federal Student Aid conducts reviews to evaluate compliance with the statute and imposes fines on institutions for noncompliance."
Library of Congress. Congressional Research Service
Cole, Jared P.
2019-07-31
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Impeachment and the Constitution [November 20, 2019]
From the Introduction: "The Constitution grants Congress authority to impeach and remove the President, Vice President, and other federal 'civil Officers' for treason, bribery, or 'other high Crimes and Misdemeanors.' Impeachment is one of the various checks and balances created by the Constitution, serving as a crucial tool for holding government officers accountable for abuse of power, corruption, and conduct considered incompatible with the nature of an individual's office."
Library of Congress. Congressional Research Service
Cole, Jared P.; Garvey, Todd
2019-11-20
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Impeachment Investigations: Law and Process [October 2, 2019]
From the Document: "Speaker Pelosi announced last week that the House 'is moving forward with an official impeachment inquiry.' Although the Speaker's statement did not address precisely how the House will proceed, it is noteworthy not only because the House has so rarely investigated a President for the purpose of impeachment, but also because an impeachment investigation has usually been an early step in a constitutional process that could ultimately result in the removal of the subject of the inquiry from office. This Sidebar identifies procedural options for the House as it proceeds with an impeachment investigation. The Sidebar also describes some of the ways in which an impeachment investigation, as compared to a more traditional investigation for legislative or oversight purposes, might bolster the House's ability to obtain, either voluntarily or through the courts, information from the executive branch. The Sidebar also briefly describes possible future steps that might follow an impeachment inquiry, including possible action by the Senate."
Library of Congress. Congressional Research Service
Cole, Jared P.; Garvey, Todd
2019-10-02
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Supreme Court October Term 2017: A Review of Selected Major Rulings [September 19, 2018]
"On October 2, 2017, the Supreme Court began one of the most notable terms in recent memory. The latest term of the Court was the first full term for Justice Neil Gorsuch,who succeeded Justice Antonin Scalia following his death in February 2016. The October Term 2017 was also the last term for Justice Anthony Kennedy, who retired in July 2018. With nine Justices on the Court for the first time at the beginning of a term since October 2015, this past term witnessed the High Court issuing fewer unanimous opinions and more rulings that were closely divided relative to previous terms."
Library of Congress. Congressional Research Service
Nolan, Andrew; Brannon, Valerie C.; Cole, Jared P. . . .
2018-09-19
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Who's the Boss at the CFPB? [Updated January 11, 2018]
"'Update: On January 10, 2018, the U.S. District Court for the District of Columbia denied Leandra English's request for a preliminary injunction, ruling that the Federal Vacancies Reform Act (Vacancies Act) authorized the President to appoint Mick Mulvaney to serve as the Acting Director of the CFPB [Customer Financial Protection Bureau]. Since the Sidebar below was originally published, English filed an amended complaint and moved for a preliminary injunction on substantially similar grounds to those described below. In rejecting her motion, the district court held that because the provision of the Dodd-Frank Act that authorizes the Deputy Director to serve as the Acting Director when the Director is absent or unavailable did not expressly displace the Vacancies Act, the Vacancies Act remained available and authorized the President to fill the position. English had also argued that even if the Vacancies Act generally would allow the President to appoint an Acting Director, because Mulvaney is also the head of the Office of Management and Budget, an agency housed directly under the White House, he may not head an independent agency like the CFPB.'"
Library of Congress. Congressional Research Service
Brannon, Valerie C.; Cole, Jared P.
2018-01-11
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D.C. Circuit Upholds as Constitutional the Structure of the CFPB - Part I [February 12, 2018]
"The entire U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued a potentially important decision on January 31, upholding the structural design of the Consumer Financial Protection Bureau (CFPB). The en banc court held by a vote of 7-3 that the agency's various statutory elements of independence, including a provision that limited the President's authority to remove the CFPB Director, do not infringe upon the President's powers under Article II of the Constitution. The decision, PHH Corp. v. CFPB, comes after a previous (but since vacated) three-judge panel decision held that providing removal protections to the sole director of the CFPB violated the Constitution. Although the en banc court rejected the earlier panel's constitutional reasoning, the D.C. Circuit nonetheless reinstated the previous decision's statutory holding, which had invalidated the CFPB's interpretation of the Real Estate Settlement Procedures Act of 1974 (RESPA). The D.C. Circuit's latest decision therefore effectively rejected the CFPB enforcement action that gave rise to the case, but reaffirmed, and may expand, what is likely Congress's chief tool for ensuring agency independence: the use of 'for-cause' removal protections. This two-part Sidebar series begins with a brief summary of the Supreme Court's views of the President's removal power before addressing the PHH litigation and the en banc majority opinion. Part II of this series will address some of the separate opinions issued in the case and then highlight certain implications for Congress."
Library of Congress. Congressional Research Service
Garvey, Todd; Cole, Jared P.
2018-02-12
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D.C. Circuit Upholds as Constitutional the Structure of the CFPB - Part II [February 12, 2018]
"As discussed in Part I of this two-part Sidebar, the en banc U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued a decision last week upholding the structural design of the Consumer Financial Protection Bureau (CFPB). The court ruled in PHH Corp. v. CFPB that the features of independence granted to the agency in the Dodd Frank Act, including a provision that limits the circumstances in which the President can remove the CFPB Director, do not violate Article II's vestment of executive power in the President. While Part I discusses the court's majority opinion, this part examines several of the separate opinions from PHH that take a different view of the constitutional issues at stake in the case. The Sidebar then concludes with some considerations for Congress, including the potential impact of the decision for the independence of federal agencies and the possibility of Supreme Court review of the en banc ruling."
Library of Congress. Congressional Research Service
Cole, Jared P.; Garvey, Todd
2018-02-12
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Who Can Serve as Acting Attorney General [November 15, 2018]
"A recent shake-up in the leadership at the Department of Justice (DOJ) has brought to the fore a number of unresolved legal questions surrounding the President's ability to name acting officers. The controversy began on November 7, 2018, when then-Attorney General (AG) Jeff Sessions resigned at the President's request. As a position subject to the advice and consent process contemplated in the Appointments Clause of the Constitution, the AG's office will remain vacant until a presidential nominee is confirmed by the Senate. But in the interim, the President named Matthew Whitaker, the former AG's chief of staff, to serve as Acting AG, performing the duties of that office while it remains vacant. To install Whitaker as Acting AG, the President invoked the Federal Vacancies Reform Act of 1998 (Vacancies Act), a law that authorizes certain government officials to temporarily perform the duties of most executive offices that require Senate confirmation."
Library of Congress. Congressional Research Service
Brannon, Valerie C.; Cole, Jared P.
2018-11-15
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Terrorist Databases and the No Fly List: Procedural Due Process and Other Legal Issue [Updated July 27, 2016]
From the Document: "In order to protect national security, the government maintains various terrorist watchlists, including the 'No Fly' list, which contains the names of individuals to be denied boarding on commercial airline flights. Travelers on the No Fly list are not permitted to board an American airline or any flight on a foreign air carrier that lands or departs from U.S. territory or flies over U.S. airspace. Some individuals have claimed that their alleged placement on the list was the result of an erroneous determination by the government that they posed a national security threat. In some cases, it has been reported that persons have been prevented from boarding an aircraft because they were mistakenly believed to be on the No Fly list, sometimes on account of having a name similar to another person who was actually on the list. As a result, various legal challenges to placement on the list have been brought in court."
Library of Congress. Congressional Research Service
Cole, Jared P.
2016-07-27
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Title IX and Sexual Harassment: Private Rights of Action, Administrative Enforcement, and Proposed Regulations [April 12, 2019]
From the Document: "Title IX of the Education Amendments of 1972 (Title IX) provides an avenue of legal relief for victims of sexual abuse and harassment at educational institutions. It bars discrimination 'on the basis of sex' in an educational program or activity receiving federal funding. Although Title IX makes no explicit reference to sexual harassment or abuse, the Supreme Court and federal agencies have determined that such conduct can sometimes constitute discrimination in violation of the statute; educational institutions in some circumstances can be held responsible when a teacher sexually harasses a student or when one student harasses another. Title IX is mainly enforced (1) through private rights of action brought directly against schools by or on behalf of students subjected to sexual misconduct; and (2) by federal agencies that provide funding to educational programs."
Library of Congress. Congressional Research Service
Cole, Jared P.; Back, Christine J.
2019-04-12
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Impeachment and Trial of a Former President [January 15, 2021]
From the Document: "For the second time in just over a year, the House of Representatives has voted to impeach President Donald J. Trump. The House previously voted to impeach President Trump on December 18, 2019, and the Senate voted to acquit the President on February 5, 2020. Because the timing of this second impeachment vote is so close to the end of the Trump Administration, it is possible that any resulting Senate trial may not occur until after President Trump leaves office on January 20, 2021. This possibility has prompted the question of whether the Senate can try a former President for conduct that occurred while he was in office."
Library of Congress. Congressional Research Service
Cole, Jared P.; Garvey, Todd
2021-01-15
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Who's the Boss at the CFPB? [November 28, 2017]
"As consumers flocked to shopping outlets nationwide on Black Friday, a leadership shakeup ensued at the Consumer Financial Protection Bureau (CFPB). The CFPB's Director, Richard Cordray, announced that he had appointed Leandra English, the agency's chief of staff, to the position of Deputy Director. Cordray then resigned and stated that English would become the Acting Director of the agency, meaning that she would serve until the Senate confirms a permanent replacement. However, later that day, President Trump announced that he was designating Mick Mulvaney, the Director of the Office of Management and Budget, to serve as Acting Director of the CFPB. On Sunday, November 26, English brought suit in federal court seeking a declaration that she is the Acting Director of the CFPB, along with a temporary restraining order barring Mulvaney from acting in the position and President Trump from appointing any individual to the position. As of the date of this Sidebar, both English and Mulvaney have reportedly claimed to be Acting Director in communications to CFPB staff. Ruling from the bench on November 28, the federal judge presiding over English's suit denied English's motion for a temporary restraining order that would have prohibited Mulvaney from holding the position."
Library of Congress. Congressional Research Service
Brannon, Valerie C.; Cole, Jared P.
2017-11-28
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Impeachment and Removal [October 29, 2015]
"The Constitution gives Congress the authority to impeach and remove the President, Vice President, and other federal 'civil officers'1 upon a determination that such officers have engaged in treason, bribery, or other high crimes and misdemeanors. Impeachment is one of the various checks and balances created by the Constitution, and is a crucial tool for potentially holding government officers accountable for violations of the law and abuse of power. Rooted in various constitutional provisions, impeachment is largely immune from judicial review.2 When considering impeachment matters, Members of Congress have historically examined the language of the Constitution; past precedents; the debates at the Constitutional Convention; the debates at the ratifying conventions; English common law and practice; state impeachment practices; analogous case law; and historical commentaries. Although the term 'impeachment' is commonly used to refer to the removal of a government official from office, the impeachment process, as described in the Constitution, entails two distinct proceedings carried out by the separate houses of Congress. First, a simple majority of the House impeaches--or formally approves allegations of wrongdoing amounting to an impeachable offense, known as articles of impeachment. The articles of impeachment are then forwarded to the Senate where the second proceeding takes place: an impeachment trial. If the Senate, by vote of a two-thirds majority, convicts the official of the alleged offenses, the result is removal from office of those still in office, and, at the Senate's discretion, disqualification from holding future office. […] This report briefly surveys the constitutional provisions governing the impeachment power, examines which individuals are subject to impeachment, and explores the potential grounds for impeachment. In addition, it provides a short overview of impeachment procedures in the House and Senate and concludes with a discussion of the limited nature of judicial review for impeachment procedures."
Library of Congress. Congressional Research Service
Cole, Jared P.; Garvey, Todd
2015-10-29
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Applicability of Federal Civil Rights Laws to Recipients of CARES Act Loans [May 1, 2020]
From the Document: "The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) authorizes the Small Business Administration (SBA) to provide economic assistance temporarily to eligible organizations. Section 1102 of the CARES Act establishes the Paycheck Protection Program (PPP), which enlarges the SBA's authority to guarantee loans under Section 7(a) of the Small Business Act. Section 1110 of the CARES Act broadens SBA's authority to distribute Economic Injury Disaster Loans (EIDL) under Section 7(b)(2) of the Small Business Act. Applicants for the latter loan can receive an emergency grant advance that the recipient does not have to repay, even if the loan is denied. [...] This extension of federal funds to new recipients raises questions about what obligations may accompany the issuance of such loans. Various federal civil rights laws condition the receipt of federal funds on recipients' adherence to certain antidiscrimination mandates. This Sidebar examines the potential application of these civil rights laws to recipients of EIDL grants and PPP and EIDL loans. It also considers potential limits on the scope of these obligations."
Library of Congress. Congressional Research Service
Cole, Jared P.
2020-05-01
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New Title IX Sexual Harassment Regulations Overhaul Responsibilities for Schools [May 27, 2020]
From the Document: "The Department of Education (ED) published new regulations implementing Title IX of the Education Amendments of 1972 (Title IX) on May 19, 2020. Title IX prohibits discrimination on the basis of sex in education programs or activities that receive federal financial assistance. While Title IX does not specifically mention sexual harassment, courts and ED have determined that the response of a recipient educational institution to incidents of sexual harassment can constitute discrimination based on sex. The new Title IX regulations establish requirements that schools must follow in responding to sexual harassment allegations, marking a major change from the expectations announced in previous guidance documents, as well as departing in many ways from the provisions in the Notice of Proposed Rulemaking (NPRM) that invited public comment on the rules."
Library of Congress. Congressional Research Service
Cole, Jared P.
2020-05-27
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Supreme Court Rules Title VII Bars Discrimination Against Gay and Transgender Employees: Potential Implications [June 17, 2020]
From the Document: "On June 15, 2020, the Supreme Court issued a decision in a series of cases brought by gay and transgender workers alleging that their employers violated Title VII of the Civil Rights Act of 1964 (Title VII) by discriminating against them 'because of . . . sex.' The Court held 6-3 in 'Bostock v. Clayton County, Georgia' that Title VII forbids employers from firing an individual for being gay or transgender. The Court's decision in Bostock was consolidated with two other cases, 'Altitude Express, Inc. v. Zarda' and 'R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC'. (An earlier Sidebar addresses lower court decisions in these cases and provides further background on Title VII.) This Sidebar explains the Court's holding in 'Bostock' and highlights some potential implications of the decision for other areas of the law, including the 'bona fide occupational qualification' (BFOQ) exception in Title VII; constitutional exceptions and religious-based exemptions to Title VII; various aspects of Title IX of the Education Amendments of 1972 (Title IX); and statutes that incorporate Title IX's requirements, such as the Affordable Care Act."
Library of Congress. Congressional Research Service
Cole, Jared P.
2020-06-17
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No Fly List: Procedural Due Process and Hurdles to Litigation [September 18, 2014]
"In order to protect national security, the government maintains various terrorist watchlists, including the 'No Fly' list, which contains the names of individuals to be denied boarding on commercial airline flights. Travelers on the No Fly list are not permitted to board an American airline or any flight on a foreign air carrier that lands or departs from U.S. territory or flies over U.S. airspace. Some persons have claimed that their alleged placement on the list was the result of an erroneous determination by the government that they posed a national security threat. In some cases, it has been reported that persons have been prevented from boarding an aircraft because they were mistakenly believed to be on the No Fly list, sometimes on account of having a name similar to another person who was actually on the list. As a result, various legal challenges to placement on the list have been brought in court. […] The Due Process Clause provides that no person shall be 'deprived of life, liberty, or property, without due process of law.' Accordingly, when a person has been deprived of a constitutionally protected liberty interest, the government must follow certain procedures. Several courts have found that placement on the No Fly list may impair constitutionally protected interests, including the right to travel internationally, and the government's redress procedures must therefore satisfy due process. […] Resolution of the issue is currently pending as at least two federal courts have ruled that the government's redress procedures for travelers challenging placement on the No Fly list violate due process."
Library of Congress. Congressional Research Service
Cole, Jared P.
2014-09-18
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Special Counsels, Independent Counsels, and Special Prosecutors: Legal Authority and Limitations on Independent Executive Investigations [April 13, 2018]
"The Constitution vests Congress with the legislative power, which includes authority to establish federal agencies and conduct oversight of those entities. Criminal investigations and prosecutions, however, are generally regarded as core executive functions assigned to the executive branch. Because of the potential conflicts of interest that may arise when the executive branch investigates itself, there have often been calls for criminal investigations by prosecutors with independence from the executive branch. In response, Congress and the U.S. Department of Justice (DOJ) have used both statutory and regulatory mechanisms to establish a process for such inquiries. These frameworks have aimed to balance the competing goals of independence and accountability with respect to inquiries of executive branch officials."
Library of Congress. Congressional Research Service
Cole, Jared P.; Brown, Cynthia
2018-04-13
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Civil Service Reform Act: Due Process and Misconduct-Related Adverse Actions [March 29, 2017]
"Federal employees receive statutory protections that differ from those of the private sector, including more robust limits on when they can be removed or demoted. Although a number of laws apply to various aspects of the federal civil service system, the primary governing framework is the Civil Service Reform Act of 1978 (CSRA), as amended. The CSRA created a comprehensive system for reviewing actions taken by most federal agencies against their employees, and the act provides a variety of legal protections and remedies for federal employees. It also funnels review of agency decisions to the Merit Systems Protection Board (MSPB), subject to review by the United States Court of Appeals for the Federal Circuit (Federal Circuit). In addition to these statutory protections, the Due Process Clause of the Fifth Amendment requires the federal government to observe certain procedures when depriving individuals of life, liberty, or property. The CSRA's requirement that covered employees may not be removed from federal service, except for cause or unacceptable performance, creates a constitutional property interest in continued employment. The government cannot deprive covered employees of this property interest without adhering to due process requirements."
Library of Congress. Congressional Research Service
Cole, Jared P.
2017-03-29
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Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court [March 8, 2017]
From the Document: "On January 31, 2017, President Donald J. Trump announced the nomination of Judge Neil M. Gorsuch of the U.S. Court of Appeals for the Tenth Circuit (Tenth Circuit) to fill the vacancy on the Supreme Court of the United States created by the death of Justice Antonin Scalia in 2016. Judge Gorsuch was appointed to the Tenth Circuit by President George W. Bush in 2006. The Tenth Circuit's territorial jurisdiction covers Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming, and parts of Yellowstone National Park that extend into Idaho and Montana. […] This report provides an overview of Judge Gorsuch's jurisprudence and discusses how the Supreme Court might be affected if he were to succeed Justice Scalia. In particular, the report focuses on those areas of law where Justice Scalia can be seen to have influenced the High Court's approach to particular issues or provided a fifth and deciding vote on the Court, with a view toward how the nominee might approach those same issues. The report begins by discussing the nominee's views on two cross-cutting issues-the role of the judiciary and statutory interpretation. It then addresses fourteen separate areas of law, arranged in alphabetical order, from 'administrative law' to 'takings.' The report includes a table that notes the cases where the Supreme Court has reviewed majority opinions written or joined by Judge Gorsuch. Another set of tables in this report analyzes the nominee's concurrences and dissents and those of his colleagues on the Tenth Circuit."
Library of Congress. Congressional Research Service
Nolan, Andrew; Lewis, Caitlain Devereaux; Manuel, Kate . . .
2017-03-08
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Organizing Executive Branch Agencies: Who Makes the Call? [June 27, 2018]
"In a series of executive orders, directives, and publicly released recommendations, the Trump Administration has proposed reorganizing the executive branch. The reorganization proposals range from restructuring entities within an existing agency, to moving entities from one existing agency to another, to consolidating existing agencies into newly created departments, to privatizing certain government agencies. The Administration has indicated that it considers some of these proposals to be within its existing authority, while others may require new legislation authorizing such action. These orders and proposals have prompted a recurring question concerning the composition of the federal government: who decides how to organize agencies and departments within the executive branch? The ultimate answer to this question is Congress. Legislative enactments create executive agencies and delegate authority to those entities to carry out various statutory functions and duties. But executive branch agencies also typically enjoy some discretion in determining how best to structure themselves to carry out their statutory responsibilities, provided that reorganization does not conflict with their governing statutes or legislative funding restrictions."
Library of Congress. Congressional Research Service
Cole, Jared P.
2018-06-27
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Privatization and the Constitution: Selected Legal Issues [September 25, 2017]
"Privatization is a broad term that encompasses various types of public-private arrangements, including contractual relationships with private entities for goods or services and government-funded voucher programs that allow individuals to purchase private goods or services. In other contexts, Congress has empowered private entities or chartered corporations to deliver services previously provided by governmental entities or to advance legislative objectives. Congress has created various corporations, including Amtrak and the Communications Satellite Corporation. More recently, in the 114th and 115th Congresses, legislation was proposed to create a corporation to provide air traffic control services that are currently administered by the Federal Aviation Administration. [...] This report focuses on the constitutional principles and judicial decisions that may constrain certain types of privatization that involve private and government-created entities."
Library of Congress. Congressional Research Service
Tsang, Linda; Cole, Jared P.
2017-09-25
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Administrative Law Primer: Statutory Definitions of 'Agency' and Characteristics of Agency Independence [May 22, 2014]
"Congress has created a variety of federal agencies to execute the law. To this end, agencies may adopt rules to implement laws and adjudicate certain disputes arising under such laws. As such, agencies enjoy considerable power to regulate different industries and affect the legal rights of people. In order to control the manner in which agencies operate, Congress has passed numerous statutes that impose procedural requirements on federal agencies. The Administrative Procedure Act, for example, dictates the procedures an agency must follow to establish a final, legally binding rule. Other statutes govern how agencies must operate internally with respect to hiring and labor practices, the maintenance of federal records, financial management, and a diverse range of other topics. […] Next, the report will explore several important statutes that regulate agencies and these statutes' respective definitions of 'agency.' These statutes include the Administrative Procedure Act, the Freedom of Information Act, the Federal Records Act, statutes governing federal employees, and the Paperwork Reduction Act. In interpreting the reach of these statutes, courts have sometimes limited their application based on an agency's operational proximity to the President, or how much control the executive branch has over the entity."
Library of Congress. Congressional Research Service
Cole, Jared P.; Shedd, Daniel T.
2014-05-22
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Federal and State Quarantine and Isolation Authority [October 9, 2014]
From the Summary: "In the wake of increasing fears about the spread of highly contagious diseases, federal, state, and local governments have become increasingly aware of the need for a comprehensive public health response to such events. An effective response could include the quarantine of persons exposed to infectious biological agents that are naturally occurring or released during a terrorist attack, the isolation of infected persons, and the quarantine of certain cities or neighborhoods. The public health authority of the states derives from the police powers granted by their constitutions and reserved to them by the Tenth Amendment to the U.S. Constitution. The authority of the federal government to prescribe quarantine and other health measures is based on the Commerce Clause, which gives Congress exclusive authority to regulate interstate and foreign commerce. Thus, state and local governments have the primary authority to control the spread of dangerous diseases within their jurisdictions, and the federal government has authority to quarantine and impose other health measures to prevent the spread of diseases from foreign countries and between states. In addition, the federal government may assist state efforts to prevent the spread of communicable diseases if requested by a state or if state efforts are inadequate to halt the spread of disease. This report provides an overview of federal and state public health laws as they relate to the quarantine and isolation of individuals and a discussion of constitutional issues that may be raised should individual liberties be restricted in a quarantine or isolation situation."
Library of Congress. Congressional Research Service
Cole, Jared P.
2014-10-09
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Ebola: Selected Legal Issues [December 16, 2014]
"Several West African countries are currently grappling with an unprecedented outbreak of Ebola virus disease (EVD). Here in the United States, where Ebola is not endemic, a handful of EVD cases have been diagnosed, and domestic transmission of the virus has occurred in only two cases to date. This report provides a brief overview of selected legal issues regarding measures to prevent transmission of Ebola virus and the civil rights of individuals affected by the disease. Quarantine and isolation are restrictions on a person's movement, imposed to prevent the spread of contagious disease. The federal government has jurisdiction over interstate and border quarantine, carried out by the Centers for Disease Control and Prevention (CDC). However, primary quarantine authority typically resides with state health departments and health officials. Every state has the authority to pass and enforce quarantine laws as an exercise of its police powers, but these laws may vary widely by state. State and federal quarantine or isolation orders may be subject to suits alleging inadequate due process or violations of equal protection, but modern legal challenges to quarantine and isolation orders are not extensive. […] The use of these measures to contain the spread of Ebola may raise a classic civil rights issue: to what extent can an individual's liberty be curtailed to advance the common good? In addition to the constitutional issues noted above, discrimination against individuals with an infectious disease may be covered by Section 504 of the Rehabilitation Act, the Americans with Disabilities Act (ADA), or the Air Carrier Access Act (ACAA). While quarantine and isolation effectively minimize Ebola exposure, they may also raise various employment concerns, particularly for those workers who fear losing their jobs or wages if they are forced to comply with a quarantine or isolation order. Infected workers may also be protected under the Family and Medical Leave Act (FMLA) if it can be established that they have a serious health condition, and employers whose employees could face workplace exposure to Ebola virus may be obligated to comply with applicable Occupational Safety and Health Administration (OSHA) requirements."
Library of Congress. Congressional Research Service
Cole, Jared P.; Perry, Rodney M.; Dolan, Alissa M. . . .
2014-12-16
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Disclosure of FISA Opinions-Select Legal Issues [February 24, 2014]
"In response to the disclosure of various National Security Agency (NSA) surveillance and data collection programs, a number of legislative changes to the government's intelligence operations authority have been suggested. Under the Foreign Intelligence Surveillance Act of 1978 (FISA), the Foreign Intelligence Surveillance Court (FISC) reviews government applications to conduct surveillance and engage in data collection for foreign intelligence purposes, and the FISA Court of Review reviews rulings of the FISC. Most FISA opinions are classified by the executive branch. Some have raised concerns that this practice permits the government to rely upon 'secret law' to justify its activities, and have proposed requiring the public release of legal opinions and orders issued by the FISC and the FISA Court of Review. However, others might regard these proposals as raising separation of powers questions, including the scope of the executive branch's control over national security information. FISA opinions and orders, most of which seem to contain at least some sensitive facts pertaining to national security, involve the legal analysis of sensitive national security information. Requiring the executive branch to release them implicates Article II of the Constitution because it compels the President to disclose potentially sensitive documents, and could override the President's classification decisions. After briefly reviewing the FISC's current procedures, this report will examine the Article II implications of requiring the executive branch to disclose FISA opinions."
Library of Congress. Congressional Research Service
Cole, Jared P.
2014-02-24
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Reform of the Foreign Intelligence Surveillance Courts: A Brief Overview [March 31, 2014]
"In the wake of recent disclosures concerning various National Security Agency (NSA) surveillance and data collection programs, several legislative changes to the government's intelligence operations authority have been suggested. Under the Foreign Intelligence Surveillance Act of 1978 (FISA), the Foreign Intelligence Surveillance Court (FISC) reviews government applications to conduct surveillance and engage in data collection for foreign intelligence purposes, and the FISA Court of Review reviews rulings of the FISC. Some have proposed altering the underlying legal authorities relied on by the government when applying to the FISC, while others have suggested changes to the practices and procedures of the FISA Courts. This report provides a brief overview of the legal implications of the latter group of proposals. Some have proposed establishing an office led by a 'public advocate' who would represent the civil liberties interests of the general public and oppose the government's applications for foreign surveillance. This proposal raises several constitutional issues. For example, assuming the advocate is an agent of the government, depending on the scope of the authority provided and the amount of supervision placed over the FISA advocate's office, the lawyer who leads such an office may be a principal or inferior officer of the United States whose appointment must abide by the Appointments Clause's restrictions. Moreover, an advocate might not satisfy Article III of the Constitution's requirements for parties seeking relief."
Library of Congress. Congressional Research Service
Cole, Jared P.; Nolan, Andrew
2014-03-31
