We’ve launched a new project: FRTracker.app. It’s a platform designed to help track what’s happening across the regulatory state—rulemakings, agency actions, and the steady flow of activity coming out of administrative agencies.
The goal is straightforward: make it easier to see what’s changing, when it’s changing, and why it matters.
If you’re an attorney, journalist, or researcher working in this space, we’d encourage you to take a look. And as always, feedback is not just welcome—it’s essential. The website is FRTracker.app and we look forward to hearing from you or, if all is in order, your finding a way to make use of it in your practice area or work. Thanks so much!
This Day in Legal History: First Official Meeting of the US Republican Party
On March 20, 1854, the newly formed Republican Party held its first official meeting in Ripon, Wisconsin, marking a pivotal moment in American legal and political history. The party emerged in direct response to the passage of the Kansas–Nebraska Act, a controversial law that allowed new territories to decide the legality of slavery through popular sovereignty. This legislative shift effectively repealed the Missouri Compromise, which had previously set geographic limits on slavery’s expansion.
The outrage among anti-slavery activists, lawyers, and former members of existing parties led to a rapid political realignment. Legal debates at the time centered on Congress’s authority over the territories and whether slavery could be restricted as a matter of federal law. These were not abstract questions—they went directly to the structure of the Constitution and the balance of power between federal authority and local control.
The formation of the Republican Party reflected a growing belief that existing legal frameworks had failed to contain the spread of slavery. Within a few years, the party would become a major political force, culminating in the election of Abraham Lincoln in 1860. By his reelection campaign in 1864, however, Lincoln ran under the banner of the National Union Party, a wartime coalition of Republicans and pro-Union Democrats.
That shift did not necessarily reflect a rejection of the Republican Party itself, but it did signal unease with factionalism and the limits of party identity during a constitutional crisis. The rebranding was a strategic and legal-political move: to broaden support for the Union, stabilize governance, and frame the election as a referendum on national survival rather than partisan ideology.
The legal disputes surrounding slavery, territorial governance, and federal authority would ultimately be resolved not just through legislation or court decisions, but through war and constitutional amendment. The Thirteenth Amendment to the United States Constitution would later eliminate slavery nationwide, fundamentally reshaping American law.
What began as a meeting in a small Wisconsin town became a turning point in the legal history of the United States, illustrating how statutory change can rapidly destabilize existing legal and political orders.
A federal judge in Oregon ruled that the Department of Health and Human Services cannot enforce a policy aimed at restricting gender-affirming care for minors, siding with 21 states and the District of Columbia. The challenged policy, issued by HHS Secretary Robert F. Kennedy Jr., declared such care unsafe and ineffective and warned that providers could lose access to Medicare and Medicaid funding. The states argued the policy was unlawful because it bypassed required rulemaking procedures and interfered with their authority to regulate medical practice.
Judge Mustafa T. Kasubhai granted summary judgment to the states and rejected the federal government’s attempt to dismiss the case. While the court has not yet issued a full written opinion, it signaled that the policy will be formally invalidated, with further briefing ordered on the scope of relief. The states emphasized that the policy placed healthcare providers in a difficult position by threatening funding while conflicting with state laws that protect access to gender-affirming care.
The federal government argued the policy was merely advisory and not subject to judicial review, but the court was not persuaded. State attorneys general described the ruling as a rejection of federal overreach and an affirmation that such healthcare remains lawful. The decision preserves access to care for transgender minors in the plaintiff states, at least for now.
This case turns in part on whether the HHS policy qualifies as a “final agency action” that must go through notice-and-comment rulemaking under the APA. The states argued that even if labeled as guidance, the policy had real legal consequences—namely, threatening loss of federal funding—making it effectively binding. Courts often look beyond labels to the practical effect of agency actions, and here the judge appeared to agree that the policy could not avoid APA requirements simply by being framed as a statement rather than a formal rule. This issue, central to the dispute, frequently arises in challenges to modern administrative action.
HHS Can’t Block Trans Care Under Kennedy Edict, Court Says - Law360
A coalition of eight states has sued to block Nexstar Media Group’s $6.2 billion acquisition of Tegna, even after the deal received approval from both the Department of Justice and the Federal Communications Commission. The states argue the merger would create excessive concentration in local television markets, giving the combined company control over stations reaching roughly 80% of U.S. households. They contend this market power would allow Nexstar to raise prices for cable and satellite providers and reduce competition for broadcast content.
The lawsuit also raises concerns about the impact on local journalism, with state enforcers warning that consolidation could lead to newsroom cuts and less coverage of local issues. DirecTV filed a parallel challenge, similarly arguing that the deal would increase costs, reduce competition, and lead to more frequent service disruptions.
Despite these objections, the FCC approved the merger with conditions, including the divestiture of several stations and commitments related to pricing and local news. Nexstar defended the deal as necessary to sustain local broadcasting and improve its ability to deliver journalism at scale.
The case highlights a growing divide between federal regulators and state enforcers, with states increasingly willing to challenge mergers even after federal clearance. It also reflects broader concerns about consolidation in media markets and its downstream effects on both pricing and the availability of local news.
States Sue To Block $6.2B Tegna Acquisition Despite Feds’ OK - Law360
In this piece I wrote for Forbes, I look at the Netherlands’ decision to outsource the core infrastructure of its value-added tax (VAT) system to the U.S.-based company FAST Enterprises. This is not just a software contract—FAST is responsible for operating, maintaining, and running key components of the Dutch VAT system remotely. Given that VAT generates roughly €1.5 billion per week in revenue, the arrangement creates a situation where a critical stream of government funding depends, at least in part, on a system controlled outside the country.
I explain that this introduces a new kind of risk: technical dependency can quickly become financial dependency. If VAT collection is disrupted for any reason, the government cannot simply pause operations—it must borrow, and markets may react immediately. That turns what appears to be an IT issue into a fiscal and potentially geopolitical one.
The broader argument is that this reflects a deeper shift in how states operate. What looks like routine modernization is actually a trade-off between efficiency and control. By adopting what I describe as “VAT-as-a-service,” the Netherlands has effectively externalized part of its tax infrastructure, raising questions about who ultimately controls a core sovereign function.
I also place this in a geopolitical context, noting that reliance on foreign-operated infrastructure can create indirect leverage, even without any explicit “off switch.” The concern is less about intentional disruption and more about exposure—legal, regulatory, or systemic—that comes with cross-border dependence.
Finally, I argue that this is not just a Dutch issue but a European trend, as governments increasingly rely on private and often non-domestic vendors for critical systems. The key takeaway is that tax infrastructure decisions should be evaluated not just on cost and efficiency, but on sovereignty, jurisdiction, and contingency planning.
Dutch VAT-As-A-Service And The Quiet Outsourcing Of Tax Sovereignty
Apologies for a double dose of me today – I wrote a piece for Yale’s Journal of Regulation Notice & Comment blog examining how regulatory obligations change during notice-and-comment rulemaking. The core argument is that most analyses look at the wrong unit—entire rules—when the real substance of regulation lies in the individual obligations imposed on regulated parties. By breaking rules down into sentence-level commands, the analysis tracks what actually happens to those obligations from proposal to final rule.
The data shows that only about one-third of proposed obligations survive into final rules in a recognizable form, while most are eliminated altogether. Agencies are far more likely to remove obligations than to revise them, suggesting that rulemaking operates less like incremental editing and more like a filtering process. At the same time, final rules frequently introduce entirely new obligations that were not present in the proposal.
When obligations do carry over, their core legal force—whether something is required, prohibited, or permitted—almost never changes. This indicates that survival tends to preserve substance, even as most proposed provisions disappear. The analysis also finds significant variation across agencies, with some making minimal changes and others heavily restructuring their rules.
The findings challenge the assumption that proposed rules are reliable previews of final regulatory requirements. Instead, they suggest that stakeholders may be commenting on provisions that are unlikely to survive, while final rules may include new obligations that were never clearly proposed. This reframes notice-and-comment as a process that selects and reshapes regulatory commands, rather than simply refining them.
The key legal insight is that the notice-and-comment process may not function primarily as iterative refinement, but as a filtering system that determines which obligations survive into binding law. This matters because administrative law doctrine assumes that public comments help shape final rules through feedback on proposed text. If most obligations are discarded rather than revised, it raises questions about whether the process provides meaningful notice of what will ultimately bind regulated parties. That directly challenges conventional assumptions about how rulemaking works in practice.
