[Note: Updates that begin with two asterisks are not included in the 2025 Supplement.]

Page 86. Add the following after note 9.

Note on the Status of the Nondelegation Doctrine

Page 87. Add the following new subsection after the Note on Nondelegation and Statutory Interpretation.

5A. The Major Questions Doctrine

Page 89. Add the following after the second full paragraph.

     A flat bar on delegation of substantive rulemaking authority to private entities was endorsed and applied in two recent cases involving the Horseracing Integrity and Safety Act of 2020, 15 U.S.C. §§ 3051-60. The Act created the Horseracing Safety and Health Authority -- a “private, independent, self-regulatory, nonprofit corporation” – and authorized it to write rules to protect the health and safety of racehorses and jockeys. The FTC could advise on and “approve” those rules but could not dictate their content. The Fifth Circuit found those unconstitutional because it gave “a private entity the last word” on the content of federal law. National Horsemen’s Benevolent & Protective Association v. Black, 53 F.4th 869 (5th Cir. 2022). In response, Congress amended the statute to give the FTC authority to “abrogate, add to, and modify the rules of the Authority.” 15 U.S.C. § 3503(e). The Sixth Circuit then upheld the amended statute. Oklahoma v. United States, 62 F.4th 221 (6th Cir. 2023), vacated and remanded, 2025 WL 1787679 (June 30, 2025). Relying in part on the FTC’s ability to oversee and reverse the Authority’s enforcement decisions (which had existed under the original statute), it emphasized that the FTC now had full power over the underlying substantive rules. The “amended text gives the FTC ultimate discretion over the content of the rules that govern the horseracing industry and the Horseracing Authority’s implementation of those rules. . . . That makes the FTC the primary rule-maker, and leaves the Authority as the secondary, the inferior, the subordinate one.” This arrangement was consistent with the separation of powers. It also ensured accountability:

Before the amendment, . . . the Authority, a private entity beyond public control, alone was responsible for the exercise of government power in this area. Not so anymore. With its new ability to have “the final word on the substance of the rules,” the FTC bears ultimate responsibility. The People may rightly blame or praise the FTC for how adroitly (or, let’s hope not, ineptly) it “ensure[s] the fair administration of the Authority” and advances “the purposes of [the] Act.” 15 U.S.C. § 3053(e) (as amended).

When the Fifth Circuit  considered the amended statute, it agreed with the Sixth Circuit that the amendment solved the substantive problem; rulemaking authority now lay with the agency. But the statute still violated “the private nondelegation doctrine.” The problem was not a delegation of legislative authority but a delegation of executive authority. The Horseracing Authority has “[t]he power to launch an investigation, to search for evidence, to sanction, to sue—all quintessentially executive functions.” The fact that the FTC can review sanctions imposed by the private body does not solve the problem, because there is no guarantee that any given case will in fact be reviewed by the FTC. National Horsemen’s Benevolent & Protective Association v. Black, 107 F.4th 415 (5th Cir. 2024), vacated and remanded, 2025 WL 1787682 (June 30, 2025).

The Supreme Court’s decision in Consumers’ Research, supra page __, has cast some doubt on the idea that there is a particular problem with delegations to private entities. There the Court applied the standard intelligible principle test to, and upheld, the FCC’s subdelegation to a private entity. And Justice Jackson concurred to suggest that the private nondelegation doctrine just does not exist:

Respondents in this case have challenged the Federal Communications Commission’s universal-service program under both the traditional nondelegation doctrine and the private nondelegation doctrine. The Court properly rejects both challenges today, and I join the Court's opinion in full. I write separately to express my skepticism that the private nondelegation doctrine—which purports to bar the Government from delegating authority to private actors—is a viable and independent doctrine in the first place. Nothing in the text of the Constitution appears to support a per se rule barring private delegations. And recent scholarship highlights a similar lack of support for the doctrine in our history and precedents. See, e.g., A. Volokh, The Myth of the Federal Private Nondelegation Doctrine, 99 Notre Dame L. Rev. 203 (2023).

FCC v. Consumers’ Research, 145 S. Ct. 2482, 2518 (2025) (Jackson, J., concurring). The Court “GVRed” (granted, vacated, and remanded) both the Horseracing Authority cases for reconsideration in light of Consumers’ Research.

**Page 99. Add the following after the carry-over paragraph.

Like 2017 and 2021, circumstances in 2025 were right for another flurry of successful disapprovals of rules from the tail end of the prior administration. By the end of June, seventeen resolutions of disapproval had been signed into law. The Center for Progressive Reform maintains a CRA tracker with the details. Three resolutions, involving EPA’s grant of a “waiver” to allow California to adopt stricter auto emission standards than the ordinarily preemptive federal standards, were adopted despite a determination by both the GAO and the Senate Parliamentarian that the agency action in question was not a “rule” and therefore not subject to the CRA. No legal challenge followed, however, because the CRA states that “[n]o determination, finding, action , or omission undewr this chapter shall be subject to judicial review.” 5 U.S.C. 805.

*Page 99. Add the following after the first full paragraph.

In Ohio Telecom Association v. Federal Communications Commission, --- F.4th ----, 2025 WL 2331753 (6th Cir. 2025), the Sixth Circuit became the first federal court to apply the CRA’s bar on rules that are “substantially the same” as disapproved rules. In 2015 the FCC classified Internet Service Providers (ISPs) as “telecommunications services,” which are common carriers. In the wake of and connected to this decision, in 2016 it adopted a rule imposing reporting requirements on  ISPs in the event of data breaches involving customers’ personally identifying information. The rule was then disapproved in the flurry of disapprovals that occurred in 2017. (It was the “FCC rule on Internet privacy” the casebook mentions in the middle of page 98.)

During the Biden administration, the FCC returned to the topic. In 2024 it published a new rule that again required notification of data breaches that revealed PII. Multiple challenges were consolidated in the Sixth Circuit. In addition to arguing that the FCC lacked the authority to issue the rule at all, the challengers argued that the 2024 was invalid because it was “substantially the same” as the disapproved 2016 rule and Congress had not approved such a rule in the interim. Ruling 6-1, the panel rejected the challenge. It had two theories. First, it stressed that while the 2024 significantly overlapped with a portion of the disapproved rule, the earlier version had included numerous other provisions which were not readopted in 2024. Congress had disapproved the entire 2016 rule; comparing the two rules, they look very different, because most of the 2016 rule does not reappear.

“If Congress intended to prohibit an agency from issuing a new rule that is substantially the same as any part of a prior rule nullified by a disapproval resolution, it could have said so. . . .

The 2016 Order was far more expansive, imposing a broad array of privacy rules on broadband Internet access services. The data breach notification requirements were a mere subset of the broader compendium of privacy rules in that Order. The 2024 Order, by contrast, addresses only data breach reporting requirements. The two rules are not substantially the same.

Secondly, the court pointed a handful of “small but meaningful differences” between the two rules.

The dissent characterized the provisions of the 2024 rule as “nearly identical” to the equivalent provisions in the 2016 rule, whereas both varied enormously from the pre-existing regulation each supplanted. It also saw the disapproval of the whole as consistent of the disapproval of each of the parts. In addition:

The majority's exclusive focus on the entire order would allow administrative agencies to easily circumvent Congress's disapproval. For instance, if the FCC issued an order adopting four discrete rules (Rules A, B, C, and D) and Congress disapproved it, then, under the majority's logic, the FCC could skirt the disapproval by readopting Rules A and B in one order and Rules C and D in another. Neither of those new orders, under the majority's interpretation of the CRA, would be “substantially the same” as the one that Congress disapproved. That interpretation, rather than giving effect to congressional intent, merely encourages creative ways to flaunt it.

Page 101. Add the following before section c.

       In the 118th Congress, the House of Representatives passed the REINS Act, H.R. 277, by a vote of 221-210. One Democrat (Jared Golden of Maine) voted for the bill; no Republican voted against it; one member of each party did not vote. The bill went nowhere in the Senate. It was reintroduced in both houses the 119th Congress. See H.R. 142; H.R. 2155, Title V; S. 809, Title V. While as of this writing it has not gotten attention as a stand-alone bill, it was included in the House version of the massive 2025 reconciliation legislation,  the “One Big Beautiful Bill Act,” until just before the final vote, and was apparently almost included in the Senate version.

Page 101. Add the following after the first paragraph of the material on appropriations.

     When Congress has appropriated funds to an agency, is it obliged to spend them? This is an old question, made newly relevant by President Trump’s orders to various agencies not to engage in funded activities. Refusing to spend appropriated funds is known as “impoundment.” In response to impoundments by Richard Nixon—impoundments that the courts had held unlawful, see Train v. City of  New York, 420 U.S. 35 (1975)--Congress enacted the Congressional Budget and Impoundment Control Act of 1974 (ICA). The ICA created a set of procedures under which the President can request Congress to rescind unspent appropriations. The president presents Congress with a rescission package, which is subject to a fast-track legislative process. Spending is paused for 45 days to give Congress time to act on the request; if it does not do so, the funds must be spent, consistent with the appropriations. The ICA also allows a president to pause spending for a short time, though the funds must still be spent within the same fiscal year and deferral must be based on one of a specific enumeration of permissible reasons. Opposition on policy grounds is not on the list.

Impoundment enthusiasts rely primarily on the Article II vesting clause, arguing that impoundment (at least of funding that has proven unnecessary to accomplish Congress’s goals but not necessarily only that) is an inherent executive power. On this view, congressional appropriations are ceilings, not floors—any appropriation has an implicit, constitutionally based “up to” before the number.

The mainstream view is that, absent statutory authorization, the president cannot refuse to spend appropriated funds and that the ICA is constitutional. That conclusion rests on Congress’s power of the purse and the Take Care Clause. Appropriations are laws like any other; it is not “faithful execution” to refuse to spend funds that Congress has directed to be spent. (Impoundment advocates have also relied on the Take Care Clause, arguing that includes an obligation to achieve congressional ends as efficiently as possible.)

Beyond the textual arguments are fundamental considerations of constitutional structure. A presidential impoundment authority would significantly shift power from Congress to the president. As for history, there is some dispute as to how many times in U.S. history the president has exercised a putative power to impound without congressional authorization. But the number is quite small; perhaps a dozen (of which six were done by Franklin Roosevelt). On the other hand, on at least one account “[u]ntil the Presidency of Richard Nixon, it was overwhelmingly understood that the power of the purse restricted only the President’s ability to spend more than an appropriation—it was not understood to prohibit the President from spending than an appropriation. And the President’s ability to spend less than an appropriation has been met with approbation, not censure, by congresses throughout the Nation’s history.” Mark Paoletta, Daniel Shapiro, & Brandon Stras, The History of Impoundments Before the Impoundment Control Act of 1974, Center for Renewing America (June 24, 2024). (Mark Paoletta is currently the OMB General Counsel.)

President Trump has successfully sought rescission of some appropriations under the ICA. The Rescissions Act of 2025, P. L. No. 119-28, 139 Stat. 467 (July 24, 2025), rescinded almost $10 billion in appropriated funds, including to the Department of State, USAID, and the Corporation for Public Broadcasting, and was enacted following ICA procedures. But President Trump has also directed numerous agencies to impound funds outside the ICA process. During the 2024 campaign, he promised: “When I return to the White House, I will do everything I can to challenge the Impoundment Control Act in court, and if necessary, get Congress to overturn it. We will overturn it.” In office, he has been somewhat less aggressive, but only somewhat. However, as of July 31, 2025, the Government Accountability Office, which provides technical assistance to agencies and Congress regarding, and issues decisions on legal issues arising under, the ICA, has found five ICA violations by the Trump administration and has more than two-dozen investigations in progress.

Numerous lawsuits challenging the Trump administration’s failure to spend appropriated funds have been filed. These cases are complex, involving numerous legal issues besides the constitutional question—standing, sovereign immunity, jurisdiction, in some cases constitutional authority over foreign affairs, and the particulars of individual statutes. Perhaps the most visible, partly because it reached the Supreme Court on a stay motion, 145 S. Ct. 753, is Aids Vaccine Advocacy Coalition v. U.S. Dep’t of State, 770 F. Supp. 3d 121 (D.D.C. 2025) (preliminarily enjoining, in part, presidentially ordered suspension of foreign aid spending). The case is currently pending in the D.C. Circuit, which held oral argument on July 7, 2025.

Pages 101-102. Add the following to the paragraph following the indented material.

     In October 2022, a panel of the Fifth Circuit held that the CFPB’s funding arrangement violates the Appropriations Clause. Community Financial Servs. Ass’n of Am. v. CFPB, 51 F.4th 616 (5th Cir. 2022). The court stated that the Appropriations Clause “does more than reinforce Congress's power over fiscal matters; it affirmatively obligates Congress to use that authority ‘to maintain the boundaries between the branches and preserve individual liberty from the encroachments of executive power.’ ” By giving the Bureau a “self-actualizing, perpetual funding mechanism,” the court concluded, Congress had abdicated this responsibility. Yes, Congress enacted the law authorizing the Bureau's funding, but a “law alone does not suffice—an appropriation is required.”

The Supreme Court reversed. CFPB v. Community Financial Servs. Ass’n of Am., 144 S. Ct. 1474 (2024). Writing for the Court, Justice Thomas laid out the text, examined contemporary dictionaries, discussed arrangements in England in the 16th-18th centuries and the pre-Revolution American colonies, and studied the appropriations made by the First Congress. There emerged a straightforward principle: the Constitution requires “an appropriation made by law,” which means Congress need “only identify a source of public funds and authorize the expenditure of those funds for designated purposes.” It had done so here.

Justice Alito’s dissent, joined by Justice Gorsuch, fought originalist fire with originalist fire. Justice Alito did emphasize the unusual nature of the CFPB’s arrangement and bemoaned how unconstrained and powerful it made the agency, but for the most part he too did not make it past the early 18th century. He spent more time in England and less in the Colonies than did Thomas. Interestingly, he also objected to Thomas’s “consulting a few old dictionaries,” because he deemed “appropriation” to be a legal term of art that should be given its technical meaning. That meaning “demands legislative control over the source and disposition of the money used to finance Government operations and projects.” The Court’s test “has the virtue of clarity” but allowed Congress to blatantly circumvent the Constitution.

Justice Kagan, joined by Justices Sotomayor, Kavanaugh, and Barrett, joined the majority opinion but wrote separately to point out that the Court’s result was supported not just by founding era practices but by everything that had happened since. “‘Long settled and established practice’ may have ‘great weight’ in interpreting constitutional provisions about the operation of government. And here just such a tradition supports everything the Court says about the Appropriations Clause’s meaning. The founding-era practice that the Court relates became the 19th-century practice, which became the 20th-century practice, which became today's. For over 200 years now, Congress has exercised broad discretion in crafting appropriations.”

Justice Jackson also joined the majority opinion but wrote separately to urge judicial caution. “The principle of separation of powers manifested in the Constitution's text applies with just as much force to the Judiciary as it does to Congress and the Executive,” and without a clear warrant in the Constitution the Court should leave Congress’s decisions about how to structure the operations of the federal government alone.

Page 102, 3rd line after the indented material.

Erratum: substitute “Seila Law” for “Lucia”

Page 102. Add at the end of the penultimate paragraph.

     After being included for several multiple appropriations measures, the bar on SEC rulemaking disappeared from the FY2022 bill, with both Houses of Congress and the Presidency in Democratic hands. The next year it was back, notwithstanding Democratic control. See Consolidated Appropriations Act of 2022, Pub. L. No. 117-103, Division E, § 633. But in 2024 it was gone again.

Page 107. Add the following before the first full paragraph.
     The current Supreme Court has shown ever-increasing enthusiasm for the unitary executive model. This is most apparent in its decisions, of which Seila Law was one, regarding the president’s power to remove officers. That is the subject of Part C.2 of this chapter. But it crops up elsewhere as well. One notable example is Trump v. United States, 603 U.S. 593 (2024), regarding presidential immunity. In discussing the president’s “exclusive and preclusive powers”—those that are founded on the Constitution rather than congressional delegation and in the exercise of which the president is absolutely immune from criminal prosecution—the Court stressed “the President’s power to remove—and thus supervise—those who wield executive power on his behalf.” And the entire opinion is imbued with a respect for the president as the individual embodiment of the executive branch. In the words of a prior decision, quoted in Trump, “[t]he President is the only person who alone composes a branch of government.” See Trump v. Mazars USA, LLC, 591 U.S. 848 (2020).

Page 119. Add the following to note 3.
     The Court reached the same result in Kennedy v. Braidwood Management, Inc., 145 S. Ct. 2427 (2025). The U.S. Preventive Services Task Force (Task Force) was created by the Department of Health and Human Services (HHS) to develop evidence-based guidelines for preventive healthcare. Congress later formalized its existence, placing it in the Agency for Healthcare Research and Quality (AHRQ) within HHS. The Task Force consists of 16 volunteer members appointed by the Secretary of HHS. The Affordable Care Act (ACA) of 2010 increased the Task Force’s importance significantly by requiring that health plans cover services with “A” or “B” ratings from the Task Force without cost-sharing. The ACA also provided that the Task Force was to be “independent and, to the extent practicable, not subject to political pressure.” 42 U.S.C. §§ 299b4(a)(1), (6). Opponents of the ACA’s preventive-services mandates sued, arguing that Task Force members are principal officers who must be appointed by the president with the advice and consent of the Senate. The lower courts agreed; the Supreme Court did not.

First, the Court emphasized the Secretary’s at-will removal authority. (The statute is silent about removal, but combined with the Secretary’s power to appoint, that silence indicates that the Secretary also has the power to remove at will.) Second, the Secretary’s ability to supervise the Task Force flowed from the power to remove, but not only from that. Various provisions empowered the Secretary to relay and block Task Force recommendations. “If the patent judges in Arthrex, whose decisions were reviewable but who were not removable at will, were inferior officers, then there can be no doubt that the Task Force members, who are subject to both forms of control, are inferior officers.” The Court read the statutory language about independence narrowly, emphasized the “to the extent practicable qualifier.” The majority thus did not decide whether at-will removal authority alone is sufficient to make someone an inferior officer.

Justice Thomas, joined by Justices Alito and Gorsuch, dissented. The heart of the dissent was about the meaning of the statute, not about the constitutional standard. The dissenters disagreed that Congress had placed appointment authority in the Secretary; in their view, the Appointments Clause requires that Congress speak clearly when it gives a department head the authority to appoint inferior officers since that is a deviation from the constitutional baseline. They also read the statute to create a genuinely independent, unsupervised entity.

Page 122. Add to note 3.
In his dissent in Braidwood Management, see immediately above, Justice Thomas stated in a footnote that he “doubted” that inter-branch appointments of inferior officers, such as that upheld in Morrison, “are consistent with the original understanding of the separation of powers.” Another possible brick in the unitary executive wall.

Page 123, regarding last bullet point.

     The casebook gives the example of legislation specifically designed to allow the reappointment of Robert Mueller as head of the FBI even though he was statutorily disqualified. A more recent example occurred in 2021. President Biden’s choice for Secretary of Defense, Lloyd Austin, was ineligible for the post because of a statutory prohibition on serving as Secretary of Defense within 7 years of relief from active duty in the armed forces. Congress obligingly passed a law (the very first law of the 117th Congress) making a very narrow exception to allow Austin’s appointment.

Page 142. Add the following to note 4.

The 5th and 9th Circuits have reached opposite conclusions on this question. See the entry under chapter 6 for page 678. The Supreme Court granted cert on this issue in the 5th Circuit case but affirmed on other grounds. See SEC v. Jarkesy, reproduced below in the Update to pages 212-14.

Page 144. Add the following to the carryover paragraph.

In a recent decision, a D.C. Circuit panel was wholly unmoved by the argument that a statute providing that “the term of each member” of the ACUS Council “is 3 years” implicitly limited the president’s removal power. See Severino v. Biden, 71 F.4th 1038 (D.C. Cir. 2023). Relying on a strong presumption of at-will removal, the need for a clear congressional command to the contrary, dicta in Myers, and an explicit if ancient Supreme Court precedent, Parsons v. U.S., 167 U.S. 213 (1897), it read “term” to impose a ceiling, not a floor. “A defined term of office, standing alone, does not curtail the President’s removal power during the office-holder’s service.”

Page 155. Add the following to note 2.

In Kaufmann v. Kijakazi, 32 F.4th 843 (9th Cir. 2022), the court held that for-cause protection for the SSA Commissioner violated the separation of powers, finding the case indistinguishable from Seila Law and Collins v. Yellen given “a single Commissioner whose term extends longer than the President's, the immense scope of the agency's programs, the Commissioner's broad power to affect beneficiaries and the public fisc, and the [agency's] largely unparalleled structure” (quoting the OLC opinion).

Page 155. Add the following to Note 6.

In the years since Seila Law, the survival of Humphrey’s Executor has become more and more doubtful. During the first half of 2025, Donald Trump fired several members of independent agencies without cause in violation of statutory protections. These three members of the Consumer Product Safety Commission, two members of the FTC and of the National Credit Union Administration, and individual members of the NLRB, Merit Systems Protection Board, and Nuclear Regulatory Commission. Most of the firings led to litigation, and in each such case the District Court held the firing illegal and ordered reinstatement. Many judges noted that, even if Humphrey’s Executor seems to be on the chopping block, a lower court is obligated to apply binding Supreme Court precedent unless and until it is overruled by the Supreme Court itself. Appeals are pending, but what has drawn the most attention are two decisions by the Supreme Court on motions for stays.

Here is the per curiam opinion for the Court, in its entirety, in the first of these, Trump v. Wilcox, 145 S. Ct. 1415 (2025).

The Government has applied for a stay of orders from the District Court for the District of Columbia enjoining the President's removal of a member of the National Labor Relations Board (NLRB) and a member of the Merit Systems Protection Board (MSPB), respectively. The President is prohibited by statute from removing these officers except for cause, and no qualifying cause was given.

The application for stay presented to The Chief Justice and by him referred to the Court is granted. Because the Constitution vests the executive power in the President, see Art. II, § 1, cl. 1, he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents, see Seila Law LLC v. Consumer Financial Protection Bureau. The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power. But we do not ultimately decide in this posture whether the NLRB or MSPB falls within such a recognized exception; that question is better left for resolution after full briefing and argument. The stay also reflects our judgment that the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty. See Trump v. International Refugee Assistance Project, 582 U.S. 571, 580 (2017) (per curiam) (“The purpose of ... interim equitable relief is not to conclusively determine the rights of the parties, but to balance the equities as the litigation moves forward.”). A stay is appropriate to avoid the disruptive effect of the repeated removal and reinstatement of officers during the pendency of this litigation.

Finally, respondents Gwynne Wilcox and Cathy Harris contend that arguments in this case necessarily implicate the constitutionality of for-cause removal protections for members of the Federal Reserve's Board of Governors or other members of the Federal Open Market Committee. We disagree. The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.

Justice Kagan, joined by Justices Sotomayor and Jackson, dissented. See also Trump v. Boyle, No. 25A11 (July 23, 2025) (6-3) (granting a stay during appeal of District Court order reinstating three terminated members of the Consumer Product Safety Commission because “[t]he application is squarely controlled by Trump v. Wilcox”).

Humphrey’s Executor seems to be on its death bed. However, the Court seems determined to uphold for-cause protections for the Federal Reserve. The challenge will be to distinguish the Fed from all other independent agencies. The Court in Wilcox gave a hint of what such an argument would look like. But at least as applied to the Federal Reserve’s Board of Governors, which is the part of the Federal Reserve that matters most, the Court’s assertions are at least contestable. The Board, as opposed to the Federal Reserve Banks, resembles a regulatory body much more than a bank and there is nothing private, quasi- or otherwise, about it. For the argument that the Court’s characterizations in Wilcox are not just contestable but flat wrong, see Lev Menand, The Supreme Court’s Fed Carveout: An Initial Assessment; Benjamin Dinovelli, The Federal Reserve Exception.

Page 159. Add the following before subsection b.

The theory that the president has an inherent directive authority under Article II is arguably more widely accepted at present than it ever has been. It is certainly the view of Donald Trump and those in his administration. A spate of Executive Orders from the first few months of 2025 are premised on such a theory. For one somewhat banal example, see Executive Order No. 14264, Maintaining Acceptable Water Pressure in Showerheads, 90 Fed. Reg. 15619 (2025), which instructed the Department of Energy to repeal a regulation that defined the term “showerhead” within the meaning of a statute that limited the permissible water flow through a showerhead. Within a week, the Department did as it was told, without notice and comment. The Federal Register notice explained: “In compliance with that order, and the President’s constitutional authority to direct rescissions of regulations, the Department hereby repeals the definition of showerhead in § 430.2. The agency’s decision to rescind that provision is nondiscretionary.” Repeal of the Definition of Showerhead, 90 Fed. Reg. 15647, 15647 (Apr. 15, 2025). And in the section entitled “Authority” (Congress has required all rulemaking notices to specify the source of the agency’s authority) the Department points to not only the relevant statute but also the Executive Order.

The same principle of presidential directive authority underlies a wide range of other Executive Orders, including many that have been in the headlines. President Trump created the Department of Government Efficiency and set its budget- and personnel-slashing agenda, ordered significant “reductions in force” at numerous agencies, instructed relevant agencies to cease awarding the documents of citizenship to anyone born in the United States, ordered the CFPB not to issue any new rules or open any new investigations, and instructed EPA to eliminate research and data collection about climate change. And there is more where those came from.

Page 166. Replace subsection (b) with the following, as per Executive Order 14215, Ensuring Accountability for All Agencies, 90 Fed. Reg. 10447 (2025)

(b) ‘‘Agency,’’ unless otherwise indicated, means any authority of the United States that is an ‘‘agency’’ under 44 U.S.C. 3502(1), and shall also include the Federal Election Commission. This order shall not apply to the Board of Governors of the Federal Reserve System or to the Federal Open Market Committee in its conduct of monetary policy. This order shall apply to the Board of Governors of the Federal Reserve System only in connection with its conduct and authorities directly related to its supervision and regulation of financial institutions.

Page 167. Add the following as a footnote to subsection (f).

In Executive Order 14094, Modernizing Regulatory Review, 88 Fed. Reg. 21879 (2023), President Biden revised the definition of “significant regulatory action.” Perhaps most important, the new definition raised the threshold for an economically significant action to $200 million, to be adjusted every three years for inflation. In addition, in subsection (4), he replaced “raises novel legal or policy issues arising out of legal mandates” with “raise legal or policy issues for which centralized review would meaningfully further,” specifying that such determinations were to be made case by case. President Trump repealed EO 14094, returning to the original text as set out in the casebook. Executive Order 14148, 90 Fed. Reg. 8237 (Jan. 28, 2025).

Page 175. Add the following to the last paragraph of Note 2.

As directed by Executive Order 14094, Modernizing Regulatory Review (Apr. 6, 2023), and after taking public comment, OIRA issued a revised Circular A-4 in November 2023. At 93 pages, the new version was almost twice the length of its predecessor. Key changes include:

• Lowering the default discount rate from 3% to 2%, and 1.1% for effects in the more distant future.

• Eliminating the requirement of performing a separate analysis using a 7% discount rate in order to account for effects on investment and for aggregate risk. Agencies should still take those into consideration, but not through a blanket, one-size-fits-all 7% discount rate.

• Providing more detailed guidance on the consideration of distributional impacts. This includes the possibility of conducting a quantitative distributional analysis. This would consist of an income-weighted analysis that takes account of the fact that a given dollar’s worth of harm or benefit has a greater impact (positive or negative) on a poor person than a wealthy one (“the income elasticity of marginal utility”). (For more on distributional impacts, see the update attached to page 189.)

• Placing greater weight on extra-territorial impacts. Where the 2003 Circular instructed agencies to focus on a proposal’s costs and benefits for those within the borders of the United States, the new version stresses that impacts on non-citizens outside the U.S. may still be relevant, even if the focus is on U.S. citizens and residents. The new circular stops well short of instructing agencies to weight impacts outside the U.S. equally with those inside the U.S.

• Ensuring that non-monetized benefits are not ignored. The 2003 Circular, like EOs 12866 and 13563, had cautioned agencies to take nonmonetized benefits seriously. The 2023 version makes stronger statements to that effect. In an effort to help focus attention on non-monetized benefits it advises agencies to include a summary table of all important non-monetized effects and a brief description of why they are important.

The new Circular proved short-lived. In Executive Order 14192, Unleashing Prosperity Through Deregulation, 90 Fed. Reg. 9065 (2025), President Trump instructed OMB to revoke the new Circular and reinstate the 2003 version. It promptly did so.

Page 183. Add the following to note 17.

In Executive Order 14215, Ensuring Accountability for All Agencies, 90 Fed. Reg. 10447 (2025), President Trump extended OIRA review to the independent agencies (exempting the Federal Reserve Board of Governors and Open Market Committee in their actions regarding monetary policy). The new text is set out at page ___ supra. The EO required the Director of OMB to produce guidance for implementing the new arrangement, which he did on April 17, 2025. See OMB, Interim Guidance Memorandum M‑25‑24, Guidance Implementing Section 3 of EO 14215. The new arrangements became effective on April 21.

As of this writing, only one independent agency, the Nuclear Regulatory Commission, had a regulatory action being reviewed by OIRA. That likely reflects inactivity on the rulemaking front more than noncompliance.

Page 185. Add the following to note 23.

The need for attention to distributional impacts was re-emphasized by President Biden’s Executive Order on Modernizing Regulatory Review:

     Sec. 3. Improving Regulatory Analysis. (a) Regulatory analysis should facilitate agency efforts to develop regulations that serve the public interest, advance statutory objectives, and are consistent with Executive Order 12866, Executive Order 13563, and the Presidential Memorandum of January 20, 2021 (Modernizing Regulatory Review). Regulatory analysis, as practicable and appropriate, shall recognize distributive impacts and equity, to the extent permitted by law.

   (b) Within 1 year of the date of this order, the Director of the Office of Management and Budget, through the Administrator of OIRA and in consultation with the Chair of the Council of Economic Advisers and representatives of relevant agencies, shall issue revisions to the Office of Management and Budget’s Circular A-4 of September 17, 2003 (Regulatory Analysis), in order to implement the policy set forth in subsection (a) of this section.

President Trump withdrew EO 14094 on his first day in office in 2025.

Page 189. Add the following to Note 4.

    As noted above, many of the most important changes found in the 2023 revision to Circular A-4 concern distributional effects. The prior (and now reinstated) version devotes only two paragraphs to the topic. Its basic admonition was this: “Your regulatory analysis should provide a separate description of distributional effects (i.e., how both benefits and costs are distributed among sub-populations of particular concern) so that decision makers can properly consider them along with the effects on economic efficiency.” In contrast, the 2023 version devoted six single-spaced pages to distributional effects. It made two key changes in particular.

First, it supplied extensive guidance on the preparation of a “distributional analysis.” The purpose is “to estimate the likely effects of the regulation on those in the groups being analyzed. This analysis involves estimation of the benefits, costs, and net benefits expected for each of these groups, if such data are available.” OIRA emphasized the desirability of quantitative rather than qualitative measures in such an analysis. A distributional analysis was not mandatory for every action; not every action has varying costs and benefits. But it should be performed whenever it “is practical, appropriate, consistent with law, and will produce relevant and useful information in a specific context.” The Circular was explicit that distributional interests “may lead an agency to select a regulatory alternative with lower monetized net benefits over another with higher monetized net benefits because of the difference in how those net benefits are distributed in each alternative.”

     Second, the 2023 document endorsed the idea of “distributional weights” mentioned in the casebook:

In traditional benefit-cost analysis, the sum of the net benefits across society equals the aggregate net benefits of the regulation. Any approach to estimating aggregate net benefits uses distributional weights. An analysis that sums dollar-denominated net benefits across all individuals to measure aggregate net benefits—as the traditional approach generally does— adopts weights such that a dollar is equal in value for each person, regardless of income (or other economic status).

Agencies may choose to conduct a benefit-cost analysis that applies weights to the benefits and costs accruing to different groups in order to account for the diminishing marginal utility of goods when aggregating those benefits and costs. Diminishing marginal utility means that an additional unit of a good is more valuable to a person (in welfare terms) if they have fewer total goods than if they have more total goods. Weights of this type are most commonly applied in the context of variation in net benefits by income, consumption, or other measures of economic status. . . .

Note that the characteristics of the parties who bear the costs of a regulation, not only the characteristics of the parties who experience the benefits, can greatly influence the estimate of net benefits when such weights are used. . . .

Agencies should not treat estimates using weights that account for diminishing marginal utility as primary if they are less informative about the welfare effects of the regulation than traditionally-weighted estimates (sometimes, albeit inaccurately, referred to as “unweighted” estimates). [Y]ou should also present traditionally-weighted estimates when conducting an analysis using weights that account for diminishing marginal utility, and present the distribution of monetized net benefits for each analyzed group in undiscounted dollars.

Scholarly views were mixed though generally positive. Compare, e.g., Comment of Mary Sullivan, Visiting Scholar, GW Regulatory Studies Center (opposed) with Comment of Professor Matthew Adler, Duke Law School (in favor).

Page 195, 1st paragraph after the Klain memorandum.

       We must qualify the statement in text that the standard practice of a new administration withdrawing all rules that have been sent to the OFR but not yet published in the Federal Register is “legally uncontroversial.” In Humane Society of the U.S. v. Dep’t of Agriculture, 41 F.4th 564 (D.C. Cir. 2022), a divided panel held that a final rule is final, so cannot be withdrawn without a new round of notice and comment, as soon as the OFR makes it available for public inspection. (By statute, this occurs prior to publication; in practice, there is usually a lag of a few days.) The court left open the possibility that if the agency posts the final rule to its own website before the OFR makes it publicly available, then that is the moment the rule is final.

The Humane Society case involved a Department of Agriculture rule designed to protect show horses from abuse. The Department published a Notice of Proposed Rulemaking in July of 2016. With the unusual speed that the last year of an administration can induce, it had a final rule ready to go by January 2017. On January 11, it posted the final rule on its website along with a press release announcing that it had “announced a final rule” that “will be publish[ed] in the Federal Register in the coming days.” It then sent the final rule to the OFR, which made it available for public inspection on January 19. It was planning to publish the rule in the January 24 Federal Register. On January 20, immediately after the inauguration of Donald Trump, Chief of Staff Reince Priebus issued the standard “regulatory freeze” memo.  On January 23, the Department withdrew the rule from publication; it thereafter took no further action on the rulemaking.

The Humane Society challenged the withdrawal. The District Court dismissed the complaint, holding that a rule only becomes final upon publication in the Federal Register.  In an opinion by Judge Tatel, joined by Judge Millet, the D.C. Circuit reversed, holding that the “regulatory point of no return” is when OFR makes the rule available for public inspection. In large measure, the court relied on the specifics of the Federal Register Act. Under that Act, making a rule available for public inspection is “sufficient to give notice of the contents” and makes the document valid against a person even without actual knowledge. 44 U.S.C. § 1507. The Federal Register Act also distinguishes between the “promulgation” of a rule and its “publication,” indicating that the first can precede the second. suggesting issuance can come before publication. And it is the “day and hour” of public inspection that must be recorded by OFR. Id. § 1503. Judge Tatel also relied on Attorney General opinions concluding that a regulation is valid as soon as it has been made available for public inspection. And, he noted, the government has enforced unpublished rules against individuals who had actual notice, which could only have occurred if the rule had legal effect before publication.

Judge Rao, in dissent, relied on the APA rather than the Federal Register Act, arguing that it makes publication the decisive event. A “person may not in any manner be required to resort to, or adversely affected by, a matter required to be published in the Federal Register and not so published.” 5 U.S.C. § 552(a)(1). The APA also requires publication at least 30 days before a substantive rule’s effective date (subject to certain exceptions). Id. § 553(d). Moreover, publication is understood to be the date that a rule is “final agency action” and the judicial review clock starts running.

The Humane Society contended that the rule was final once the Department of Agriculture had posted it on its own website. The majority declined to address this argument. Does it have merit?

Pages 212-214. Replace the material beginning with “In Granfinanciera” to the end of Part 2 with the following:

Replacement material concerning the 7th Amendment (including SEC v. Jarkesy).