Administrative Law

  • August 1, 2014
    Guest Post

    by Lisa Heinzerling, the Justice William J. Brennan, Jr., Professor of Law, Georgetown Law; Co-Faculty Advisor, Georgetown University Law Center ACS Student Chapter

    Imagine a government warning on tobacco products that gave nearly equal prominence to both the pleasures and pains of using tobacco products. The "warning" would tell citizens that whether they should use tobacco products or not was – despite the government's long practice of recommending against such use – actually a pretty close case. Tobacco use is just so pleasurable, it turns out, that its risks – of bad health, of early death – might be worth it.

    Or imagine a parent saying the same thing to her child: here are the risks of using tobacco products, she'd say, but here on the other side are the wonderful pleasures. You make the call; it's too close for me to judge.

    Despite its strangeness, this is exactly the kind of statement the White House and the Food and Drug Administration have collaborated in propounding in the context of a proposed rule deeming certain tobacco products subject to FDA regulation under the Family Smoking Prevention and Tobacco Control Act. Economists from the FDA and the White House's Office of Management and Budget published a study purporting to estimate the amount by which the health benefits of tobacco use reduction are offset by a loss of the pleasure of using such products. When the FDA's proposed rule on tobacco products went to the White House for review, White House economists, rather than placing this study in the dustbin where it belonged, doubled down on its strange analysis. Indeed, they ended up increasing the FDA's estimate of the extent to which the "lost pleasure" associated with reducing tobacco use offsets the health benefits to be gained.

  • July 8, 2013

    by Jeremy Leaming

    Republican senators bent on shuttering or at least greatly hindering the National Labor Relations Board (NLRB), which is charged with protecting the right of workers to organize, continued their efforts of obstruction by holding up nominees to the five-member board. The Senate minority also sought to delay or scuttle the president’s nominations to the Environmental Protection Agency, Department of Labor and Consumer Financial Protection Bureau.

    Senate Democrats are discussing how best to reform chamber processes to facilitate more progress and action on various nominations. We may learn more following Tuesday’s Senate Democratic Caucus lunch meeting if Majority Leader Harry Reid (D-Nev.) raises the issue there with his colleagues.

    Regarding the NLRB, which Republicans have long maintained is an entity harmful to business interests, Senate Republicans blocked attempts to hold up-or-down votes on the nominations of Mark Gaston Pearce, Richard F. Griffin, Jr., Sharon Block, Harry I. Johnson III and Philip A. Miscimarra. Republicans have pointed to an opinion issued earlier this year by the U.S. Court of Appeals for the District of Columbia Circuit that President Obama’s now-expired recess appoints of some nominees were unconstitutional.

    The Republicans argue that until the litigation in the case, NLRB v. Noel Canning, is resolved the labor board should not be permitted to function. The Supreme Court announced in June it would consider the case during its next term. Business lobbyists and their allies in the Senate have looked for all kinds of ways to paralyze or greatly hobble the NLRB, such as refusing to consider to the president’s nominations, which led to the recess appointments.

    After the president sent his package of nominees to the NLRB this spring, ACSblog featured guest blog posts on the struggle over the labor board. They include compelling stories about the work of the NLRB and provide detailed context of the ongoing controversy:

  • June 21, 2012
    Guest Post

    By Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service, George Washington University Law School. The writer did an unpaid moot court for plaintiffs’ counsel in the case discussed in this essay.

    In Christopher v. SmithKline Beecham (No. 11-204, decided June 18, 2012), the Supreme Court had to decide whether individual plaintiffs who were detailers for drug companies were exempt from the overtime provisions of the Fair Labor Standards Act (FLSA), which do not apply to workers employed “in the capacity of outside salesmen.” The relevant facts were undisputed and also appear to be unique to this industry. There is an interesting administrative law issue relating to whether the interpretation of the Department of Labor, which enforces the FLSA, should be given deference, but what caught my eye was the battle between the literalists and the pragmatists and how it came out in this case.

    The job of a drug detailer is to persuade doctors to prescribe the prescription drugs sold by their company to their patients in appropriate situations. By law, those drugs can only be purchased from a licensed pharmacy, with a doctor’s prescription, and the actual sales of the drugs are made by the manufacturer (the employer of the detailer) to the pharmacy, but never to a doctor or a patient directly. Detailers are paid good salaries, plus a modest bonus that is loosely determined by the sales of the drugs in their territory. The individual plaintiffs earned in excess of $70,000 per year and the industry average is above $90,000.  They regularly work between 10-20 hours a week above the 40 hours, after which they would be entitled to overtime. Their work is almost always out of the office, and no one supervises them on a daily basis.

    The issue the Court had to decide was whether these plaintiffs (and nearly 90,000 others in the industry who work in virtually identical arrangements) are exempt from the overtime law because they are outside salesmen. At stake was potentially millions of dollars in unpaid overtime for whatever period was not barred by the statute of limitations. The companies could probably restructure their pay systems in the future to minimize the impact, by reducing salaries or bonuses to offset any anticipated overtime, but they would prefer not to have to do that.

  • June 5, 2012
    Guest Post

    By Wilson Abney, an attorney and consultant who has advised federal agencies and Congress on government ethics, including as chief counsel to the Senate Ethics Committee and as an attorney for the U.S. Commerce Department and the Consumer Financial Protection Bureau.

    The National Labor Relations Board has jurisdiction over union organizing drives, elections, and labor-management relations in the private sector. NLRB members are appointed by the President and confirmed by the Senate. On January 9, 2012, pursuant to a recess appointment by President Obama, Terrence Flynn was sworn in as a Member of the NLRB. On May 25, Mr. Flynn submitted his letter of resignation effective July 24. Mr. Flynn’s resignation follows two reports issued by the NLRB’s Inspector General (IG) criticizing conduct he engaged in as an attorney on the staff of NLRB member Brian Hayes.  

    Mr. Flynn began working at the NLRB in 2003 as Chief Counsel to Republican NLRB member Peter Schaumber. When Mr. Schaumber left the NLRB, Mr. Flynn joined the staff of Republican NLRB member Brian Hayes.

    According to the IG’s reports, in 2010 and 2011, during his tenure with Mr. Hayes, Mr. Flynn leaked to Mr. Schaumber (who at the time was co-chair of presidential candidate Mitt Romney’s labor advisory committee) and Peter Kirsanow, another former Republican NLRB member (who was serving as outside counsel to the National Association of Manufacturers) confidential information including drafts of NLRB decisions as well as materials constituting NLRB internal deliberations. In addition to Mr. Flynn’s unauthorized disclosure of confidential information received in the course of his official duties, the IG concluded that Mr. Flynn had secretly helped Mr. Schaumber prepare a newspaper opinion piece attacking an NLRB decision characterized as pro union.

  • May 14, 2012
    Guest Post

    By Melissa Rothstein, deputy director of the Equal Rights Center, and Megan K. Whyte, director of the Fair Housing Project at the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. This is cross-posted at The Equal Rights Center’s blog.

    Fair Housing Month recently ended, and for most it was an opportunity to celebrate our country’s commitment to equal opportunity in housing for all people. Unfortunately, for some, it was instead another occasion for attacks on the crucial efforts to ensure enforcement of our country’s fair housing laws.

    In one such example, Congress launched an investigation into why the City of St. Paul withdrew an appeal in the Supreme Court that had the potential to eviscerate the validity of disparate impact challenges under the Fair Housing Act (FHA), despite the rulings of eleven federal circuit courts of appeal that uniformly held that disparate impact claims are cognizable under the FHA. In another example, Republican presidential candidate Mitt Romney suggested that, if elected president, he would consider disbanding the Department of Housing and Urban Development (HUD), an agency for which his father once served as Secretary.

    These actions come on the heels of a disturbing trend by federal courts of imposing additional hurdles on fair housing plaintiffs. Even in the face of efforts to make it more difficult for plaintiffs to enforce their statutory rights, the continuing role of fair housing organizations in enforcing the provisions of the FHA cannot be overstated. Private fair housing organizations and other civil rights groups investigate two out of every three fair housing complaints filed across the country – and their ability to enforce fair housing violations is critical to the promise of equal housing opportunity for all. These organizations are able to conduct investigations efficiently and effectively with little of the bureaucracy and overhead costs that may be associated with governmental agencies, and to gain the trust of disenfranchised community members who may not feel comfortable lodging a complaint with a government entity. 

    Officials at HUD and DOJ – the federal agencies with authority to enforce the FHA – recognize the importance and value of private enforcement, as they lack the resources to effectively enforce the FHA on their own. As detailed in our recent American Constitution Society Issue Brief, Congress intended for private enforcement to be a key component of ensuring FHA compliance, and the 1988 FHA amendments were largely intended to amend the law’s enforcement mechanism so that, in Senator Kennedy’s words, it would no longer be “a toothless tiger.”