Recent Commentary from Inter Alia

YLPR’s online edition

The Congressional Review Act and Judicial Review

Paul J. Larkin, Jr.
Friday, July 2, 2021 - 1:15pm

The Congressional Review Act of 1996 (CRA) prohibits agency rules from going into “effect” before they are submitted to Congress so that it can review them and, if it chooses, pass legislation nullifying them before they can injure the public or the economy. Unfortunately, agencies have regularly disregarded the CRA, requiring affected members of the public to ask the courts to invalidate unsubmitted rules. The U.S. Court of Appeals for the Tenth Circuit, however, held that the validity of an unsubmitted rule is not subject to judicial review. The court’s nonsensical ruling that courts must “see no evil” upends the purpose of the CRA by allowing agencies to coerce action by private parties that Congress has had no opportunity to consider and scotch before they become “law.” The Supreme Court needs to make clear that the CRA does not permit agency officials to ignore the CRA.

“The Cornerstone of the Stability of our Government”: The Forgotten Penalty Clause and Electoral Reform in the Aftermath of the 2020 Election

Delaram Takyar
Monday, June 14, 2021 - 12:00pm

The 2020 presidential election, which was preceded by months of efforts by Republican party members to disenfranchise voters during a global pandemic, highlighted the United States’ historic need for electoral reform. The tools for this reform might already exist in the Penalty Clause of the Fourteenth Amendment, which provides a built-in remedy—reduced representation in Congress—in cases where a state abridges the voting rights of its citizens. This Remark provides an overview of the history of the long-neglected Penalty Clause, including a discussion of how important its drafters viewed its role, as well as practical proposals for ways it could be implemented today.   

Retiring the 401(K): A New Framework For Retirement Savings

Benjamin Silver & Michael Slomovics
Monday, June 14, 2021 - 12:00pm

Americans attempting to save for retirement face a maze of account options, each with their own unique tax consequences. Unfortunately, this maze also limits access to tax-advantaged retirement savings and takes money out of savers’ pockets. In this Remark, we recommend entirely eliminating traditional and Roth 401(k) accounts after a date to be specified by Congress. To compensate for dollars that workers formerly contributed to these accounts, we propose raising the current contribution limits to traditional and Roth Individual Retirement Accounts (“IRAs”) proportionately. We argue that this reform would solve numerous inefficiencies and inequities in the current 401(k) system, would effectively expand lower- and middle-class workers’ access to tax-advantaged retirement savings, and solve seven severe problems plaguing the 401(k). In addition, we explore the options for transitioning from the current regime to an all-IRA regime and address some preliminary objections to our proposal.

Too Close for Comfort: An Insider’s View of Presidents and Their Attorneys General

Kris Olson
Saturday, March 30, 2019 - 1:30pm

President Donald Trump’s sometimes turbulent relationship with his now-former Attorney General Jeff Sessions drew the attention of the country, but how unusual was it really? As the head of the Department of Justice, the AG is tasked with ensuring appropriate administration of justice, but, as a political appointee removable at will by the President, the AG is also intrinsically tied with the politics of the administration.  Throughout the last six administrations, different AGs have reacted in various ways to the tensions created by these two roles–each earning their own moniker: The Foxtrotter. The Wingman. The Co-Conspirator. The Company Man. The Stand-Up Lady. The Witness. The Wallflower. 

Senate Blue Slips and Senate Regular Order

Carl Tobias
Tuesday, November 20, 2018 - 7:30pm

Justice Neil Gorsuch’s Supreme Court confirmation process exacerbated the striking divisiveness, rampant partisanship, and stunning paybacks that have systematically plagued the federal judicial selection process. The Senate basically ended any true debate when the Republican majority peremptorily detonated the “nuclear option” for Supreme Court nominees. This measure limited filibusters regarding all judicial nominees, allowing a simple majority ballot to confirm a nominee. One century-long practice that does remain is the “blue slip.” Under Senate tradition, whenever the President submits a federal district or appeals court nominee, the Judiciary Committee Chair sends a blue slip of paper to each senator who represents the state in which the nominee will sit, and those senators can delay the nomination by refusing to return the slip. However, recent changes in the blue slip practice by Senate Judiciary Committee Chair Senator Chuck Grassley (R-IA), powerful support for Grassley’s perspectives regarding slips from many Republican senators, and new threats by other GOP members to abrogate or change blue slips merit scrutiny. Elimination or alteration could jeopardize the Senate’s discharge of its constitutional responsibility to advise and consent on presidential nominees and undermine the institution itself.

Derived Data: A Novel Privacy Concern in the Age of Advanced Biotechnology and Genome Sequencing

Alda Yuan
Wednesday, August 15, 2018 - 12:15pm

Cheap genetic sequencing, big data, and advanced biotechnology have the potential to revolutionize healthcare, but they also raise health data privacy concerns. They permit the emergence of derived data, which is unknown to the individual it describes and obtained through the analysis of existing data, both related and unrelated to healthcare. Derived data implicates the effectiveness of informed consent, the current method to protect patient privacy. Patients, research subjects, and consumers cannot reasonably consent to sharing, analysis, or use of data they do not know exists. To protect privacy rights while enabling progress in healthcare, regulations which now conceptualize data in silos must properly contend with 21st century data processing capabilities to link distant and seemingly unrelated data to form a more compete whole.

Presidential Power To Protect Dreamers: Abusive or Proper? 

Kevin J. Fandl
Monday, January 29, 2018 - 9:00pm

Many young undocumented immigrants brought to the United States as children, affectionately known as “Dreamers,” enjoy substantial protection from deportation under the Deferred Action for Childhood Arrivals (DACA) program. President Trump’s administration is attempting to withdraw this protection, purportedly in an effort to promote the rule of law by limiting executive overreach into matters of congressional concern. This Essay argues that the attempted rescission of DACA is not only out of step with broadly held American values, but premised on a flawed vision of the relationship between the legislative and executive branches. Our constitutional tradition wisely grants the President flexibility to make social policy through enforcement discretion, within the broad legal contours drawn by Congress. DACA is a legitimate exercise of that presidential power.

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