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Supreme Court October Term 2018: A Review of Selected Major Rulings [August 23, 2019]
From the Document: "The Supreme Court term that began on October 1, 2018, was a term of transition, with the Court issuing a number of rulings that, at times, suggested but did not fully adopt broader transformations in its jurisprudence. The term followed the retirement of Justice Kennedy, who was a critical vote on the Court for much of his 30-year tenure and who had been widely viewed as the Court's median or 'swing' Justice. As a result, the question looming over the October 2018 Term was how the replacement of Justice Kennedy with Justice Kavanaugh would alter the Court's jurisprudence going forward. Notwithstanding the alteration in the Court's makeup, observers have generally agreed that the October 2018 Term largely did not produce broad changes to the Court's jurisprudence. Although a number of cases presented the Court with the opportunity to rethink various areas of law, the Court largely declined those invitations. In other cases, a majority of the Justices did not resolve potentially far-reaching questions, resulting in the Court either issuing more narrow rulings or simply not issuing an opinion in a given case. Nonetheless, much of the low-key nature of the October 2018 Term was a product of the Court's decisions to not hear certain matters. And for a number of closely watched cases that it did agree to hear, the Court opted to schedule arguments for the next term."
Library of Congress. Congressional Research Service
Nolan, Andrew; Brannon, Valerie C.; Hayes, Benjamin . . .
2019-08-23
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When Does the Government Have to Disclose Private Business Information in its Possession? [Updated June 25, 2019]
From the Document: "On Monday, April 22, the Supreme Court heard oral arguments in 'Food Marketing Institute (FMI) v. Argus Leader Media', in which the Court is considering the scope of Exemption 4 of the Freedom of Information Act (FOIA). That exemption authorizes agencies to with hold from disclosure under FOIA 'confidential' commercial or financial information that a non-governmental entity has supplied an agency. While Exemption 4 has generated significant case law in the lower federal courts, the Supreme Court has never--until now--considered the issue. Third parties regularly submit sensitive proprietary information to the federal government in a diverse array of contexts, including such varied situations as applications for government loans; applications for drug approvals by the Food and Drug Administration; military and other government contracts; and settlement negotiations with agencies. As a result, the Court's decision in FMI implicates a public policy debate about the scope of Exemption 4. On one hand, a narrow view of the exemption could affect private parties' willingness to share information submitted to the government under these and other contexts. At the same time, financial and commercial information may often be associated with federal programs and activities that implicate public health and safety, the allocation of federal funds, and other matters of public interest that may warrant public scrutiny. Accordingly, a decision that broadens agencies' discretion to withhold under Exemption 4 may effect a corresponding limitation on the public's access to such important data. In anticipation of the Court's decision in FMI, this Sidebar provides a general overview of Exemption 4 and 'FMI'"
Library of Congress. Congressional Research Service
Sheffner, Daniel J.
2019-06-25
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Freedom of Information Act (FOIA): A Legal Overview [February 24, 2020]
From the Summary: "Originally enacted in 1966, the Freedom of Information Act (FOIA) establishes a three-part system that requires federal agencies to disclose a large swath of government information to the public. First, FOIA directs agencies to publish substantive and procedural rules, along with certain other important government materials, in the Federal Register. Second, on a proactive basis, agencies must electronically disclose a separate set of information that consists of, among other things, final adjudicative opinions and certain 'frequently requested' records. And lastly, FOIA requires agencies to disclose all covered records not made available pursuant to the aforementioned affirmative disclosure provisions to individuals, corporations, and others upon request."
Library of Congress. Congressional Research Service
Sheffner, Daniel J.
2020-02-24
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Freedom of Information Act: An Introduction [March 9, 2020]
From the Document: "The Freedom of Information Act (FOIA), codified at 5 U.S.C. § 552, provides the public a right to access federal agency information. Subject to statutorily enumerated exemptions and exclusions, agencies must disclose records covered by the act in one of three ways. First, FOIA directs agencies to publish certain important government materials in the Federal Register. Second, on a proactive basis, agencies must electronically disclose certain agency information. And third, FOIA requires agencies to disclose all covered records that are not available through the aforementioned affirmative disclosure provisions to individuals, corporations, and other entities on request. This In Focus provides a brief introduction to FOIA."
Library of Congress. Congressional Research Service
Sheffner, Daniel J.
2020-03-09
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Congress's Authority to Influence and Control Executive Branch Agencies [Updated December 19, 2018]
"The most potent tools of congressional control over agencies, including those addressing the structuring, empowering, regulating, and funding of agencies, typically require enactment of legislation. Such legislation must comport with constitutional requirements related to bicameralism (i.e., it must be approved by both houses of Congress) and presentment (i.e., it must be presented to the President for signature). The constitutional process to enact effective legislation requires the support of the House, Senate, and the President, unless the support in both houses is sufficient to override the President's veto. There also are many non-statutory tools (i.e., tools not requiring legislative enactment to exercise) that may be used by the House, Senate, congressional committees, or individual Members of Congress to influence and control agency action. In some cases, non-statutory measures, such as impeachment and removal, Senate advice and consent to appointments or the ratification of treaties, and committee issuance of subpoenas, can impose legal consequences. Others, however, such as House resolutions of inquiry, may not be used to bind agencies or agency officials and rely for their effectiveness on their ability to persuade or influence."
Library of Congress. Congressional Research Service
Garvey, Todd; Sheffner, Daniel J.
2018-12-19
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Has Judicial Deference to Agency Regulatory Interpretations Reached Its Final 'Auer?' [March 25, 2019]
From the Document: "On Wednesday, March 27, the Supreme Court is scheduled to hear arguments in 'Kisor v. Wilkie', in which the Court is asked to overturn one of the most significant and contentious doctrines in administrative law. That doctrine, first espoused by the Court nearly seventy-five years ago in 'Bowles v. Seminole Rock & Sand Co.', and later reaffirmed in 'Auer v. Robbins', generally instructs courts to defer to agencies' reasonable constructions of ambiguous regulatory language. The Court's decision to uphold, narrow, or end application of the 'Auer' doctrine not only may have direct ramifications for agencies' approach to decision making, but also may signal whether the Court will reconsider an even more consequential administrative law doctrine--the 'Chevron doctrine'--in the near future. This Sidebar provides a general overview of the 'Auer' doctrine and the Supreme Court's consideration of 'Kisor', including the potential consequences of the Supreme Court's decision in that case."
Library of Congress. Congressional Research Service
Sheffner, Daniel J.
2019-03-25
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When Does the Government Have to Disclose Private Business Information in Its Possession? [April 24, 2019]
From the Document: "On Monday, April 22, the Supreme Court heard oral arguments in 'Food Marketing Institute (FMI) v. Argus Leader Media', in which the Court is considering the scope of Exemption 4 of the Freedom of Information Act (FOIA). That exemption authorizes agencies to withhold from disclosure under FOIA 'confidential' commercial or financial information that a non-governmental entity has supplied an agency. While Exemption 4 has generated significant case law in the lower federal courts, the Supreme Court has never--until now--considered the issue. Third parties regularly submit sensitive proprietary information to the federal government in a diverse array of contexts, including such varied situations as applications for government loans; applications for drug approvals by the Food and Drug Administration; military and other government contracts; and settlement negotiations with agencies. As a result, the Court's decision in 'FMI' implicates a public policy debate about the scope of Exemption 4. On one hand, a narrow view of the exemption could affect private parties' willingness to share information submitted to the government under these and other contexts. At the same time, financial and commercial information may often be associated with federal programs and activities that implicate public health and safety, the allocation of federal funds, and other matters of public interest that may warrant public scrutiny. Accordingly, a decision that broadens agencies' discretion to withhold under Exemption 4 may effect a corresponding limitation on the public's access to such important data. In anticipation of the Court's decision in 'FMI', this Sidebar provides a general overview of Exemption 4 and 'FMI'."
Library of Congress. Congressional Research Service
Sheffner, Daniel J.
2019-04-24
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Judicial Review of Actions Legally Committed to an Agency's Discretion [September 17, 2020]
From the Document: "Individuals and entities affected by a federal agency's action sometimes may be able to challenge that action in federal court. In some cases, an agency's governing statute specifically authorizes affected parties to bring suit challenging a particular agency action. But even when specific statutory authority is unavailable, a person generally can challenge an agency's action in federal district court under the Administrative Procedure Act (APA). On review, the APA empowers courts to set aside agency action that is, among other things, 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' The Supreme Court has explained that the APA 'embodies the basic presumption of judicial review' of agency action, meaning that judicial review under the APA generally will be available to a party. But not every legal challenge of an agency's action is reviewable. Constitutional and prudential considerations may limit when a court will entertain such a suit. Jurisdictional requirements must also be satisfied."
Library of Congress. Congressional Research Service
Sheffner, Daniel J.
2020-09-17
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Administrative Law Reform Legislation in the 116th Congress [July 23, 2020]
From the Document: "Congress has broad authority to define and prescribe the powers and responsibilities of federal agencies. Typically, an agency may carry out its congressionally prescribed responsibilities in a number of ways, including through issuing binding regulations and adjudicative orders, and through providing nonbinding oral or written guidance to stakeholders and the public. And Congress may, within constitutional bounds, alter agencies' powers and responsibilities as it deems appropriate. The 116th Congress has considered numerous legislative proposals to alter the administrative rulemaking process or the way those rules may be reviewed by courts and the legislative branch. Some proposals would modify the rulemaking procedures of the Administrative Procedure Act (APA), including to require, in certain situations, trial-type, evidentiary hearings on specific types of rules. Others would increase congressional involvement in agency rulemaking by, for example, requiring legislative approval of certain rules before they may go into effect. And still other proposals would change the scope of federal courts' review of agency legal interpretations by altering or eliminating judicial deference doctrines."
Library of Congress. Congressional Research Service
Sheffner, Daniel J.
2020-07-23
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Freedom of Information Act (FOIA) [September 8, 2020]
This is an infographic regarding the Freedom of Information Act (FOIA), which "provides the public with a right to access federal agency information, subject to enumerated exemptions and exclusions."
Library of Congress. Congressional Research Service
Sheffner, Daniel J.
2020-09-08
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Congress's Authority to Influence and Control Executive Branch Agencies [Updated May 12, 2021]
From the Summary: "The Constitution neither establishes administrative agencies nor explicitly prescribes the manner by which they may be created. Even so, the Supreme Court has generally recognized that Congress has broad constitutional authority to establish and shape the federal bureaucracy. Congress may use its Article I lawmaking powers to create federal agencies and individual offices within those agencies, design agencies' basic structures and operations, and prescribe, subject to certain constitutional limitations, how those holding agency offices are appointed and removed. Congress also may enumerate the powers, duties, and functions to be exercised by agencies, as well as directly counteract, through later legislation, certain agency actions implementing delegated authority."
Library of Congress. Congressional Research Service
Garvey, Todd; Sheffner, Daniel J.
2021-05-12
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Agency Rescissions of Legislative Rules [February 8, 2021]
From the Introduction: "Federal administrative agencies may carry out their statutory obligations in many ways, including by adjudicating claims or disputes involving private parties, or by issuing oral or written guidance explaining how they understand or interpret their statutory authority or obligations. In addition to these and other actions and activities, federal administrative agencies may, pursuant to congressionally delegated authority, carry out their responsibilities through the promulgation of 'legislative rules'--that is, rules that carry the force of law. [...] This report provides an overview of agency rescissions and alterations of rules. First, it briefly examines the APA's [Administrative Procedure Act] notice-and-comment rulemaking requirements and exceptions to such requirements. It then discusses selected topics central to agency rescissions and alterations. After considering the general requirements agencies must follow when rescinding or altering a rule, the report explains how courts have treated agencies' withdrawal of rules from OFR [Office of the Federal Register], suspension and postponement of rules, and stay of rules pending judicial review under the APA. Following a brief explanation of how new presidential administrations typically respond to the late-term rulemaking activities of prior administrations, the report then discusses the general review standards and principles courts apply when reviewing an agency rescission or change of a rule. Lastly, the report concludes with a summary of selected options available to Congress pertaining to the rescission or alteration of rules and how Congress can use its power of the purse to prohibit agencies from developing, finalizing, or implementing rules."
Library of Congress. Congressional Research Service
Bowers, Kate R.; Sheffner, Daniel J.
2021-02-08
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Responses to Midnight Rulemaking: Legal Issues [January 21, 2021]
From the Document: "Hours after President Joe Biden took office on January 20, 2021, the White House issued a memorandum directing agencies to take action with respect to regulations that the Trump Administration issued shortly before the transition. It is common for federal agencies to increase rulemaking activity during the final months of a presidential administration--a phenomenon commonly known as 'midnight rulemaking.' Since Election Day, November 3, 2020, agencies in the Trump Administration issued final rules governing immigration adjudication proceedings; the construction, operation, and maintenance of gas pipelines; rebates under Medicare Part D; and a host of other subjects. Federal agencies also published a number of proposed rules that have not yet been finalized. Since President Reagan took office in 1981, incoming presidential administrations have routinely taken measures to respond to a prior administration's midnight rulemaking activities. This Sidebar explains how the Biden Administration may confront the bevy of rules recently finalized or proposed by the Trump Administration--including rescinding rules that have already taken effect, and suspending the effective dates of rules that were finalized by the prior Administration but which had not yet become legally effective--and how courts generally have responded to challenges to an agency's rescission or postponement of a final rule. This Sidebar also addresses actions Congress could take to rescind or prevent the implementation or enforcement of midnight rules with which it disagrees."
Library of Congress. Congressional Research Service
Sheffner, Daniel J.; Bowers, Kate R.
2021-01-21
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Major Questions Doctrine [April 6, 2022]
From the Document: "Congress frequently delegates authority to agencies to regulate particular aspects of society, in general or broad terms. However, in a number of decisions, the Supreme Court has declared that if an agency seeks to decide an issue of major national significance, its action must be supported by 'clear' statutory authorization. Courts, commentators, and individual Supreme Court Justices have referred to this doctrine as the 'major questions doctrine' (or major rules doctrine), although the Court has never used that term in a majority opinion. This In Focus provides an overview of the major questions doctrine. It discusses the doctrine's framework, provides examples of its application, explores recent Supreme Court developments, and offers considerations for Congress in crafting legislation against the backdrop of the doctrine."
Library of Congress. Congressional Research Service
Sheffner, Daniel J.
2022-04-06
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