2011 Administrative Law Conference

Primary Sponsors
  • Post-Conference Materials

  • Message from Michael Herz

CLE Credits


During the summer of 2011, Congress and the Administration reached a compromise that required Congressional action to reduce the deficit and to pass an appropriations bill to fund federal agencies. A Select Joint Committee has been established to negotiate bills. The debate, compromise, and negotiation raise a number of logistical, legal, and practical issues. This panel of experts will address the valid administrative law and tax implications as well as the political dynamic and logistical consequences of the actions leading up to ultimate compromise.

Analyze the legal and policy rationales for subjecting or exempting independent agencies from regulatory review under Executive Orders and the Unfunded Mandates Reform Act, and the obligations to apply cost-benefit analysis and choose least burdensome regulatory alternative.

This panel will discuss the challenges facing adjudication of removal (deportation) cases and potential reforms. While there is widespread consensus that the system needs reform, the nature of the reform is still being studied and debated. This panel will bring audience members up to date on the major challenges facing a system charged with determining whether an individual may be deported from the United States. The panel also will discuss proposed reforms, including an ongoing study of the system being conducted by the Administrative Conference of the United States and a study completed by the American Bar Association.

An understanding of congressional ethics rules and process is essential for: Members and staff of Congress; corporations and trade associations; government affairs and campaign professionals; and counsel for any of these individuals or groups. This panel -- comprising the current chief counsels of all three congressional ethics offices and moderated by a former chief counsel of both the House and Senate ethics committees -- will provide a comprehensive overview of: U.S. congressional ethics rules, with a focus on the gift rules; the advisory and enforcement processes followed by the House Ethics Committee and by the Senate Ethics Committee; and the jurisdiction and role of the new Office of Congressional Ethics in the House ethics enforcement framework. Among the specific subjects expected to be covered are: application of congressional gift rules to lobbyists, corporations and trade associations through the Lobbying Disclosure Act; recent developments in congressional ethics enforcement; and the relationship between the Department of Justice and the congressional ethics offices in enforcement of congressional ethics standards.

The learning objectives of the panel will thus be twofold. First, the panelists’ presentations will offer audience members the opportunity to learn perspectives from leading scholars on the significant issues of rulemaking ossification and the common law character of administrative law. Second, audience members will learn about the overall impact of judicial decision-making on administrative law when Professor Glicksman initiates a discussion between all of the panelists to unite the areas of their research. This discussion will explore the role of the courts in the development of administrative law and whether courts are playing a salutary role or having unintended effects on administrative law.

The Government in the Sunshine Act, enacted in 1976, requires that the multi-member bodies that head government agencies hold their meetings in public. Many have suggested that the Sunshine Act decreases collegiality at such multi-member agencies and encourages the use of techniques to avoid meaningful discussions at meetings. This program will discuss various assessments of the Act’s impact on multi-member agencies.

This panel will focus on recent developments in employment-based immigration benefits programs, including the Department of Homeland Security’s (DHS’s) administration of the controversial foreign investor program, and the Department of Labor’s (DOL’s) new prevailing wage regulations governing the employment of temporary and permanent foreign national workers. In exploring these topics, participants will learn about the cross section of immigration and administrative law. For example, the panel will explore the manner in which DHS uses policy statements and individualized adjudication to set the parameters of its immigration benefits programs. The panel will also cover DOL’s recent legislative rulemaking activities. In addition, the panel will examine strategies for challenging employment-based immigration decisions in federal court, and some common defenses raised by the Government.

This program is intended to educate on the major administrative law issues in the Patient Protection and Affordable Care Act (PPACA). This statute, enacted in March 2010, requires an aggressive agenda of regulatory implementation which will affect all aspects of the US health care sector. This program will seek to:explain the basic provisions of PPACA and associated administrative law issues; debate the constitutionality of PPACA and the litigation on this issue now before the federal courts; explain how the public health initiatives are incorporated into PPACA; debate the challenges associated with the implementation of Health Insurance Exchanges; and describe the role of comparative effectiveness research in health reform.

In June, the Administrative Procedure Act (APA) turned 65 years old. Even though there have been significant changes in the organization and scope of government agencies over the years, the APA has remained largely unchanged. Currently, there are several bills that are pending in Congress that may impact the administrative law landscape. The program will feature a panel of experts from different sides of the issue. The panel will discuss the bill on APA, the Clearing Unnecessary Regulatory Burdens Act or the CURB Act, and the Regulations from the Executive in Need of Scrutiny Act of 2011 or REINS Act. The audience will learn about this important pending legislation and the potential impact that the bills could have on the regulatory community.

The requirements of Sect 610 of the Regulatory Flexibility Act and various Presidential Executive Orders will be presented and their conclusions discussed on the effectiveness of the regulations, their costs and their impacts on small businesses. The agencies conclusions and their responses to the findings will be debated. Methods of preparing such reports and effective ways for the public (both industry and public interest/labor groups) to respond to retrospective reviews will be presented. Finally have the regulations worked?

Rising energy prices and the pressure to develop affordable domestic fuel supplies has resulted in natural gas and oil companies using hydraulic fracturing technology to extract natural gas and oil from shale substrate in various locations throughout the United States. This “new” water injection process has raised concerns from environmentalists and state regulators. The panel will discuss new “fracking” regulations promulgated under an interstate compact by the Delaware River Basin Commission (DRBC). Attendees will learn about the fracking process, how the States regulate that process, and how fracking regulation is affected by the Delaware River Basin Compact and NEPA.

The new SEC pay to play rule has implications not just in the field of election law, but also for any field that deals with the financial services industries. In addition, the state and local pay-to-play rules that apply may impact a variety of individuals which are associated in various ways with businesses that have or would like to have contracts with state or local governments. These pay to play rules are the result of an electorate demanding more transparency in the area of political contributions and government contracts. Due to the newness of the SEC rule and patchwork application of state and local pay-to-play regulations, there seems to be widespread uncertainty and at times misinformation about the rules. These rules are already impacting the candidates in the 2012 election and potential donors. This panel will enable attendees to provide information to their clients about the potential implications of political contributions to presidential candidates or city council candidates. This panel will also provide insights to current federal, state and local attorneys concerning the impact of such regulations, what policies have and have not worked and the regulatory trends in this area.

What should we, as lawyers, do when asked to represent a client or a position that is very unpopular with other clients our firm represents? Do we have an absolute responsibility to represent an unpopular client? Does it matter whether others dislike the client? How do the responsibilities of being a lawyer vary depending on whether the representation is in civil or criminal matters? What if representation will result in our losing other, angry clients or future business opportunities? At a time when many are concerned about partisan behavior and the inability to reach compromises on important matters, these issues take on increasing importance. Two of the pre-eminent experts on the subject will explore the ethical and practical aspects of lawyer representation.

The PRA is one of the broadest reaching checks on agency authority, but it is generally not well understood and rarely used to its full potential. This session will provide a primer on the information collection provisions of the Act. It will cover the policy and procedures of the Act, an introduction to OMB’s guidance on surveys and how OMB reviews surveys and other statistical information collections, and the perspective of agency staff on regulatory development and the PRA.

This panel will focus on legal and policy issues related to agency use of regulation by disclosure, one of the approaches that regulatory agencies can use to achieve program goals in ways that reduce burdens and maintain flexibility and freedom of choice. Issues to be addressed include: when should disclosure be used as a substitute for command-and-control regulation and when as a supplement, what types of disclosure information, statements and graphics are most effective, are there limits to the types of disclosures that can or should be required, in what ways has research involving focus groups and surveys been designed and used to develop more effective disclosures, and how can the benefits of new disclosure requirements be estimated.

In this signature event of the Administrative Law Section’s Fall Conference, scholars will present a comprehensive overview of the most important administrative law developments in the last twelve months. It’s all the administrative law news that’s fir for discussion and it comes packaged in one fast-paced program that has become a must-attend event for anyone practicing federal administrative law or involved with regulation in Washington.

As Justices Kagan and Sotomayor settle into their seats on the bench and the Roberts Court enters its seventh Term, now seems an appropriate time to step back and think about how the Roberts Court has handled various doctrines relating to judicial review of federal agency action, including Chevron, Skidmore and Auer deference as well as arbitrary and capricious review. This panel will identify and discuss some of the Roberts Court's most significant decisions involving scope of review doctrines and access to courts issues, such as the Court's recent opinions in Talk America, Mayo Foundation, FCC v. Fox and Massachusetts v. EPA, to determine whether any consistent themes or patterns can be discerned. The panel will also assess whether any predictions for the fate of judicial review of federal agency action during the Roberts era can be made.

This panel will explore legal and policy issues related to agency use of incorporation by reference. Issues addressed will include: access by the public to documents they often need to purchase in order to determine applicable regulations; ambiguities that can arise as agencies interpret and apply incorporated material they did not produce; updating regulations that incorporate industry consensus standards when those standards are updated; copyright issues that may arise when an agency makes available documents produced by a third party, and finding ways to improve procedures for approving and managing regulations that incorporate other materials by reference.

The issue to be discussed at the program is whether the jurisdiction of the Court of Appeals for Veterans Claims (CAVC) and the Court of Appeals for the Federal Circuit (CAFC) should be expanded. In particular, the program will address whether Congress should grant the CAVC de novo jurisdiction to review all aspects of a decision by the Board of Veterans’ Appeals and also grant the CAFC jurisdiction to review factual determinations for “clear error.” The panelists will address the pros and cons of the approach, including issues that should be addressed by Congress (in particular, a concern that the Court should not re-visit favorable factual determinations made by the Board). Panelists would be proposed to include private practitioners, VA practitioners and academics. It is hoped that the program will serve as the spring-board for a resolution by the ABA House of Delegates, recommending that Congress create legislation.

Ethical Considerations in Public Sector Law focuses on the unique ethical issues confronted by public lawyers using an entertaining, interactive format. Panelists dramatize short, illustrative hypothetical scenarios with a discussion period following each skit. Topics include: scope of representation, duties to former clients, responsibilities of supervisory lawyers, special conflicts of interest for government employees, reporting professional misconduct and more. Presented many times across the country, this program has been universally well-received by government lawyers eager for ethics programming designed specifically for them.

The panel will discuss the role of the district court and appellate court in reviewing decisions of the Executive Branch and the military in the ongoing war against al Qaeda. In so doing, the panel will discuss how traditional administrative law principles relating to deference, statutory interpretation, and standards of review apply in this context. The court will also consider issues such as standing and political question in war powers cases.

The Inspector General Act dates from 1978, a year of “good government” with the concurrent creation of the Office of Special Counsel and the Merit Systems Protection Board. Since then, not only has the number and type of federal inspectors general (IGs) increased, but also the authorities and independence of federal IGs have grown. Among other authorities, federal IGs now have full statutory law enforcement power, independent counsel, enhanced subpoena authority, and greater protection from arbitrary removal. On this panel, eminent members of the IG community will discuss these issues and more, including such issues as investigations and audits; review of proposed policy, legislation and regulations; the IG statutory budget process; reporting requirements; and the Council of the Inspectors General on Integrity and Efficiency (CIGIE), the “watchdog of the watchdogs.” The discussion will be followed by a Q&A.

Thursday, November 17, 2011

09:00 AM - 10:30 AM : Debt Ceiling Default

09:00 AM - 10:30 AM : Regulatory Review of Independent Agencies, Including Presidential/OMB Review and UMRA

09:00 AM - 10:30 AM : Solving the Immigration Adjudication Crisis

09:00 AM - 10:30 AM : Congressional Ethics: Rules, Process, and Enforcement

10:45 AM - 12:15 PM : The George Washington Law Review

10:45 AM - 12:15 PM : The Government in the Sunshine Act: A Current Assessment

10:45 AM - 12:15 PM : Recent Developments in Employment Based Immigration Adjudication

10:45 AM - 12:15 PM : Administrative Law Issues in the Patient Protection and Affordable Care Act: Prospects for Facilitating Genuine Health Reform

01:45 PM - 03:15 PM : Administrative Law: Time to REIN It In, CURB It, or Reform It?

01:45 PM - 03:15 PM : Retrospective Reviews of Regulations under Sect. 610 of the Regulatory Flexibility Act and Various Presidential Orders

01:45 PM - 03:15 PM : Interstate Fracking Regulation

01:45 PM - 03:15 PM : The Impact of New Federal State & Local Pay-to-Play Regulations on Your Clients

03:30 PM - 05:00 PM : So Someone Objects To Your New Client...

03:30 PM - 05:00 PM : Paperwork Reduction Act: A Primer

03:30 PM - 05:00 PM : The New Consumer Financial Protection Bureau

03:30 PM - 05:00 PM : Information as a Regulatory Tool