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Showing 21 results

William Funk

Distinguished Professor of Law Emeritus

William Funk | July 2, 2024

What’s Next after Supreme Court Opinion in SEC v. Jarkesy?

I am appalled by U.S. Supreme Court Chief Justice John Roberts’ opinion in SEC v. Jarkesy because it is so dishonest in its use of precedent. Put aside for the moment whether fraud under the Securities and Exchange Commission’s (SEC) statutes is the equivalent of common law fraud, despite the clear differences between the two. The Chief Justice’s description of the law regarding “public” versus “private” rights as a basis for placing enforcement actions in an agency rather than a court is itself a fraud.

William Funk | May 24, 2022

What the Fifth Circuit Got Wrong About the 7th Amendment in Jarkesy

The Fifth Circuit Court of Appeals ruling in Jarkesy v. Securities and Exchange Comm'n is a potential blockbuster. In 2020, the Securities and Exchange Commission (SEC) held that George Jarkesy had engaged in misrepresentation in certain public statements, thereby committing securities fraud. The SEC ordered Jarkesy to cease and desist and to pay a civil penalty. In addition, the agency barred him from certain securities industry activities.

William Funk | March 30, 2022

Notice & Comment Commentary: HHS Proposes to Rescind the SUNSET Rule

On the day before President Biden’s inauguration, the Department of Health and Human Services (HHS) adopted the Securing Updated and Necessary Statutory Evaluations Timely rule, colloquially known as the SUNSET Rule, because it would sunset any regulation that had not been assessed and, where required, reviewed within a specific timetable. Everyone is now expecting HHS to rescind the SUNSET Rule in the near future, and the agency should indeed take this action.

William Funk | December 7, 2020

HHS Proposes to Sunset Regulations It Fails to Review Retrospectively

Everyone who has studied what agencies in fact have done have concluded that agencies have largely failed in complying with varying retrospective review requirements. What is to be done? The Department of Health and Human Services (HHS) has a proposed answer: absent a retrospective review within a designated period, sunset the regulation.

William Funk | April 16, 2019

OMB Leveraging the CRA to Add to Its Oversight of Independent Regulatory Agencies

Last week, the acting director of the Office of Management and Budget (OMB) issued a memorandum to all agencies regarding compliance with the Congressional Review Act (CRA). This memo supersedes one issued in 1999 and pulls independent regulatory agencies – specifically designed by Congress to be less prone to political interference than executive agencies – […]

William Funk | January 30, 2018

Breaking the Law: Many Trump Regulatory Rollbacks and Delays Are Unlawful

Progressives have rightfully taken issue with the Trump administration’s policy goals, from immigration to the environment, from health care to worker safety. Given the president’s decidedly unprogressive stances, one should not be surprised at the policy reversals from the prior administration. One might be surprised, however, and dismayed as well, at the cavalier disregard that […]

William Funk | May 22, 2017

Requiring Formal Rulemaking Is a Thinly Veiled Attempt to Halt Regulation

Originally published on The Regulatory Review by CPR Member Scholar William Funk. Professor Kent Barnett recently opined in The Regulatory Review that formal rulemaking really is not that bad and may actually be a good thing in certain circumstances. His argument deserves closer review because the proposed Regulatory Accountability Act (RAA) would require the equivalent of formal […]

William Funk | February 14, 2017

Why the REINS Act Is Unconstitutional

The so-called Regulations from the Executive In Need of Scrutiny Act (REINS Act) has already passed the House this year, as it did in previous sessions. The current version, which amends the Congressional Review Act (CRA), differs somewhat from previous versions but still suffers from a fatal flaw – it is unconstitutional.  The current REINS […]

William Funk | October 3, 2016

Why SOPRA Is Not the Answer

Originally posted at Notice & Comment, a blog of the Yale Journal on Regulation and the American Bar Association Section of Administrative Law & Regulatory Practice, as part of an online symposium entitled Reflections on Seminole Rock: The Past, Present, and Future of Deference to Agency Regulatory Interpretations. Reprinted with permission. The Separation of Powers […]