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On January 30, 2020, OMB published a Notice entitled “on Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication.” OMB solicited comments by March 16 on the issues raised by eleven questions. The wording of the Notice and President Trump’s reference to it in his State of the Union address strongly suggest that the President plans to use the record created by the Notice as the basis for an Executive Order in which he will limit in many ways the actions that agencies can take in investigations and enforcement proceedings.

In these comments, Professor Pierce responds to four of the questions posed in the OMB Notice. The comments document the fairness of the adjudication procedures that agencies use in enforcement proceedings. The comments also explain how some of the actions taken by the President, the Department of Justice and the courts threaten to eliminate features of the agency adjudication system that are critically important to its fairness.

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No. 2020-07

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