• July 24, 2017
    Guest Post

    by Charlotte Garden, associate professor at Seattle University School of Law

    *This is part of ACSblog's Symposium on Regulatory Rollback

    With key National Labor Relations Board and Department of Labor appointments nearing confirmation votes, the Trump administration’s labor policy will soon be in full swing. There is little doubt that that policy will involve some 180-degree reversals from the generally pro-worker positions of the Obama NLRB and DOL, and other more incremental retreats from Obama-era policies. This post discusses a few deregulatory changes that are likely to take effect over the next several months or years, and what they will mean for workers.

    The Department of Labor

    Under Tom Perez’s leadership, the Obama Department of Labor enacted a series of new rules designed to improve workers’ lives. Key among them was a rule that doubled the threshold below which employers would have to pay overtime to white-collar workers to $47,500. In addition to that signature achievement, other important Obama DOL rulemakings would have forced employers to disclose more of their spending on anti-union “persuaders,” and halved the permissible level of silica dust (which is linked to cancer and other lung diseases) to which construction workers can be exposed. The first two of these rules were enjoined before they could take effect; litigation regarding the last is pending in the D.C. Circuit.

  • July 24, 2017
    Guest Post

    by Gigi B. Sohn*, Fellow, Georgetown Law Institute for Tech & Society, Open Society Foundations and Mozilla and Kevin Werbach, Associate Professor of Legal Studies & Business Ethics, The Wharton School, University of Pennsylvania

    *Sohn previously served as Counselor to FCC Chairman Tom Wheeler from Nov. 2013 - Dec. 2016. 

    **This post is part of ACSblog’s Symposium on Regulatory Rollback

    The Open Internet (or “net neutrality”) rules adopted by the Federal Communications Commission (FCC) in 2015 were the Obama administration’s most significant achievement in communications regulation. They were among the first rules the Trump administration targeted following the 2016 election. In May, the Trump FCC began a rulemaking proceeding to repeal them. It also rejected the legal authority in which the rules are grounded, and failed to recommend anything in their place.

    The Open Internet rules prohibit broadband Internet Service Providers (“ISPs) like Comcast, AT&T, Verizon, and Charter, from discriminating against or favoring any content, applications or services on the Internet. Among other things, the rules specifically prohibit ISPs from blocking or throttling, and prohibit ISPs from extracting fees in exchange for faster or better quality delivery to the consumer (“paid prioritization”).

  • July 21, 2017
    Guest Post

    by Steve Vladeck, Professor of Law, University of Texas School of Law

    The front page of Friday’s Washington Post includes a story about the Trump Administration quietly investigating ways of firing Special Counsel Robert S. Mueller III or otherwise shutting down his ongoing (and apparently widening) investigation into Russian tampering in the 2016 presidential election. While there are three possible avenues through which Mueller could legally be removed, which I outline below, it is possible that any or all of these moves could themselves be treated as obstruction of justice, whether by the Special Counsel (if it somehow survives the affair) or Congress in impeachment proceedings. That is to say, even if the President lawfully has the power to fire someone, that doesn’t mean such action is completely unlimited. (For instance, the President could not fire an at-will employee simply because of their race, religion, or sex.)

    And this leads to perhaps the most important bottom line: The complexities of the legal issues aside, what is hopefully clear is that the President has a fair amount of legal authority to act, or to at least attempt to act, in this space—authority that Congress has not meaningfully sought to circumscribe since it enacted the independent counsel statute in 1978. But as the obstruction point underscores, the real question is not whether the President has a legal right to fire Special Counsel Mueller, but whether such a legal move might nevertheless provoke his current supporters in Congress to turn against him—or, at the very least, to more aggressively support other investigations into the current Administration and the Trump campaign.

  • July 20, 2017

    by Shoba Sivaprasad Wadhia, the Samuel Weiss Faculty Scholar and Law Professor at Penn State Law and founding director, Center for Immigrants’ Rights Clinic.

    On June 26, the Supreme Court granted a partial stay and also granted certiorari in Trump v. Hawaii and Trump v. International Refugee Assistance Project, the Muslim travel ban cases. Here is a short analysis. The scope of the partial stay is as follows: within 72 hours of the ruling, any person from the six designated countries or refugee who cannot show a “bona fide relationship to a person or entity” will be banned from entry. The Department of State indicated that the travel ban would go into effect at 8:00pm EDT on June 29, 2017. Hours before the ban was to go into effect, the government issued guidance defining what constitutes a “bona fide relationship” narrowly. Litigation about the meaning of a “bona fide relationship” ensued in the Hawaii District Court and Ninth Circuit Court of Appeals.

  • July 20, 2017

    by Senator Sheldon Whitehouse, Rhode Island*

    **Read Harvard Law and Policy Review here

    In “Beyond the War on Drugs,” the Harvard Law & Policy Review has selected a timely and important topic—particularly in light of the recent presidential election, whose winner ran a campaign heavily focused on “restoring” law and order. Forty-five years after President Richard Nixon declared a war on drugs and identified drug use as “public enemy number one,” the policies and priorities associated with that war stand at a crossroads.(1)