Neomi Rao

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Neomi Rao
Image of Neomi Rao

Nonpartisan

United States Court of Appeals for the District of Columbia Circuit
Tenure

2019 - Present

Years in position

5

Education

Bachelor's

Yale University, 1995

Law

University of Chicago Law School, 1999

Personal
Birthplace
Detroit, Mich.
Contact

Official website 

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See also: Rao's views on the administrative state

Neomi Rao is a federal judge on the United States Court of Appeals for the District of Columbia Circuit. President Donald Trump (R) nominated Rao on November 13, 2018, to fill the vacancy on the court created by Brett Kavanaugh's confirmation to serve on the United States Supreme Court.[1] On March 13, 2019, the U.S. Senate confirmed Rao on a recorded vote of 53-46.[2] Rao received commission on March 18, 2019.[3] To see a full list of judges appointed by Trump, click here.

The United States Court of Appeals for the District of Columbia Circuit is one of 13 U.S. courts of appeal. They are the intermediate appellate courts of the United States federal courts. To learn more about the court, click here.

Rao is one of two judges on the court appointed by Donald Trump (R). The other judges on the court were appointed by George H.W. Bush (R), George W. Bush (R), Bill Clinton (D), and Barack Obama (D). After Rao's confirmation, the court had a 7-3 Democratic-appointed majority.

Rao is an American legal scholar. She was the administrator of the Office of Information and Regulatory Affairs (OIRA), an agency within the White House Office of Management and Budget (OMB), from July 2017 to March 2019. Rao previously worked as an associate professor of law at George Mason University's Antonin Scalia Law School, where she founded the Center for the Study of the Administrative State.[3][4]

Judicial nominations and appointments

U.S. Court of Appeals for the D.C. Circuit (2019-present)

See also: Federal judges nominated by Donald Trump

President Trump (R) nominated Rao on November 13, 2018. On March 13, 2019, the U.S. Senate confirmed Rao to the court on a recorded vote of 53-46.[2] To read more about the federal nominations process, click here.

Nomination Tracker
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Nominee Information
Name: Neomi Rao
Court: United States Court of Appeals for the District of Columbia Circuit
Progress
Confirmed 120 days after nomination.
ApprovedANominated: November 13, 2018
ApprovedAABA Rating: Majority Well Qualified/Minority Qualified
Questionnaire: Questionnaire
ApprovedAHearing: February 5, 2019
QFRs: QFRs (Hover over QFRs to read more)
ApprovedAReported: February 28, 2019 
ApprovedAConfirmed: March 13, 2019
ApprovedAVote: 53-46


March 13, 2019: U.S. Senate votes to confirm Rao

The U.S. Senate confirmed Rao on a party-line vote of 53-46 on March 13, 2019. Republicans senators voted in favor of her confirmation while Democratic senators opposed her confirmation.[5] To see a full breakdown of the vote on the official U.S. Senate website, click here.

Neomi Rao confirmation vote (March 13, 2019)
Party Yea Nay No vote
Electiondot.png Democratic 0 44 1
Ends.png Republican 53 0 0
Grey.png Independent 0 2 0
Total 53 46 0

February 28, 2019: Senate Judiciary Committee votes to advance Rao's nomination

The Senate Judiciary Committee voted 12-10 in a party-line vote on February 28 to advance OIRA Administrator Neomi Rao’s nomination to the full Senate for a vote.[6]

The vote took place less than a week after Senate Judiciary Committee member Josh Hawley (R-Mo.) raised concerns about his reading of Rao’s academic writings that he claimed favor substantive due process—a legal interpretation that aims to safeguard general rights not specifically named in the U.S. Constitution. Hawley met privately with Rao twice in the days preceding the vote and stated that the discussions gave him confidence in her judicial philosophy. According to Hawley, Rao said that substantive due process “finds no textual support in the Constitution.”Cite error: Invalid <ref> tag; invalid names, e.g. too many[7]

February 5, 2019: Senate Judiciary Committee hearing centers on Rao's undergraduate writings

The Senate Judiciary Committee held a hearing on Rao's nomination on February 5, 2019.[8]

Rao’s nomination to the court, considered the second-highest in the land, was waylaid by questions about her undergraduate writings. Committee members also questioned Rao about her recent work as OIRA administrator under the Trump administration. Since the DC Circuit hears the majority of judicial challenges to administrative actions, Rao stated that she would consider recusing herself from cases concerning regulations issued under the Trump administration on a case-by-case basis when required by court precedent or statutory standards.[9][10]

November 13, 2018: President Trump nominates Rao to D.C. Circuit Court of Appeals

President Trump (R) nominated Rao on November 13, 2018, to fill a vacant seat on the United States Court of Appeals for the District of Columbia Circuit. The vacancy was created by D.C. Circuit Judge Brett Kavanaugh’s elevation to the United States Supreme Court.[1][11]

At the sine die adjournment of the 115th Congress on January 3, 2019, the Senate returned Rao's nomination to President Trump.[12] Rao was one of 51 individuals the president re-nominated on January 23, 2019.[13]

The American Bar Association rated Rao well qualified by a majority and qualified by a minority.[14] To read more about ABA ratings, click here.

Education

Rao earned a B.A. from Yale University in 1995 and a J.D. from the University of Chicago Law School in 1999.

Professional career

Early career

After earning her law degree, Rao clerked for Judge Harvie Wilkinson on the United States Court of Appeals for the 4th Circuit from 1999 to 2000 and served as counsel to the United States Senate Committee on the Judiciary under U.S. Senator Orrin Hatch (R-Utah) from 2000 to 2001. From 2001 to 2002, Rao clerked for United States Supreme Court Justice Clarence Thomas. She took a hiatus from government service to practice law in the London office of Clifford Chance LLP, specializing in public international law and arbitration, from 2002 to 2005. She returned to the United States to serve as a special assistant and associate counsel to former President George W. Bush (R) from March 2005 to July 2006.[4][15][16]

Center for the Study of the Administrative State

Rao joined the faculty of George Mason University's Antonin Scalia Law School as an assistant professor in 2006. She became an associate professor in 2012 and founded the university's Center for the Study of the Administrative State in 2015. Her scholarship "has focused on the political and constitutional accountability of the administrative state, in particular considering the role of Congress," according to her faculty profile at George Mason University.[15][16]

Office of Information and Regulatory Affairs

See also: Office of Information and Regulatory Affairs

The United States Senate confirmed Rao to serve as the administrator of the Office of Information and Regulatory Affairs (OIRA), an agency within the White House Office of Management and Budget (OMB), on July 10, 2017, in a 54-41 vote. OIRA's responsibilities include regulatory review, clearance and approval of government information collection requests, and oversight of government statistical practices and privacy policies. The agency is responsible for reviewing and coordinating what it deems all significant regulatory actions made by federal agencies.[4][17] Rao worked in the OIRA until her confirmation as a federal judge on the United States Court of Appeals for the District of Columbia Circuit in March 2019.[3]

Boards and committees

Rao served on the following boards and committees as of July 2018:[4]

Academic scholarship

The following table contains a selection of works by Rao about the administrative state and related issues. Any links in the table below feature Ballotpedia summaries of that scholarly work.

Works related to the administrative state
Title Source
"Administrative Collusion: How Delegation Diminishes the Collective Congress" New York University Law Review (2015)
"Removal: Necessary and Sufficient for Presidential Control" Alabama Law Review (2014)
"A Modest Proposal: Abolishing Agency Independence in Free Enterprise Fund v. PCAOB" Fordham Law Review (2011)
"The President’s Sphere of Action" Willamette Law Review (2009)
"Does Philosophy Deserve a Place at the Supreme Court?" Rutgers Law Record (2003)

Views on the administrative state

Scope of regulation

In "The Administrative State and the Structure of the Constitution," published by the Heritage Foundation in 2018, Rao put forth the view that administrative agencies create regulatory burdens for citizens when they promulgate regulations beyond the scope of their congressionally delegated authority:[18]

“ Most of the authority of the federal government is exercised through administrative agencies that create regulations, enforce those regulations, and also at times adjudicate cases under those regulations. To be sure, regulatory actions can sometimes implement important health, safety, and welfare priorities that have been set by Congress, but administrative agencies that operate on their own inertia often create regulations that are overly burdensome and fail to deliver any real benefits.[19] ”


Nondelegation doctrine

See also: Nondelegation doctrine

Rao expressed her support for the nondelegation doctrine with respect to congressional delegations of authority to administrative agencies in her 2014 New York University Law Review article "Administrative Collusion: How Delegation Diminishes the Collective Congress." Rao argued that the failure of the federal courts to enforce the nondelegation doctrine has resulted in the growth of the administrative state, which threatens individual liberty.[20]

“ The importance of the nondelegation principle has been reaffirmed throughout our history, but reliance on structural checks and balances has proved unavailing. Developments within the administrative state suggest the courts should articulate and enforce a more robust nondelegation doctrine. In addition, the political branches can also rein in delegations, which may bolster both the collective Congress and the unitary executive. Excessive delegations have undermined individual liberty by allowing for the expansion of the administrative state outside the Constitution’s requirements for accountability. The collective Congress provides a way to think about the problem of delegation at its source.[19] ”


Guidance documents

See also: Guidance

Rao discussed her approach toward agency guidance documents as the head of OIRA during a January 2018 interview with The Brookings Institution. Rao stated that OIRA has discouraged agencies from issuing guidance documents that implement new regulatory requirements.[21]

“ Another way we promote more constitutional government is by highlighting and promoting due process and fair notice, which I mentioned earlier. By cracking down on sub regulatory guidance, or sometimes called regulatory dark matter, we're ensuring that when agencies impose new requirements they're following administrative procedures and giving the public notice and an opportunity to comment.[19] ”


Removal of independent agency heads

See also: Appointment and removal power and Independent federal agency

Rao discussed her support for the at-will removal of the heads of independent federal agencies in her 2014 Alabama Law Review article "Removal: Necessary and Sufficient for Presidential Control." Rao posited that the at-will removal of the heads of independent federal agencies, who can only be removed for cause, would increase presidential control of the executive branch and satisfy constitutional requirements for the exercise of executive power.[22]

“ The debate over presidential control of the administrative state continues amidst legal uncertainty and judicial challenges. As scholars have sought to move beyond labels of 'independence' for understanding actual presidential control, realistic understandings of administration have resulted in relative indifference to constitutional requirements. Yet Article II requires the President serve as the Administrator in Chief, in control of execution of the laws and with directive authority over his subordinates. Such control cannot be left solely to congressional preferences or to politics. The executive power in the scheme of separation of powers deserves more than a rubber stamp.


This Article has argued for removal at will as both necessary and sufficient for presidential control. This principle provides a constitutional rule that takes into account the realities of modern administration and properly accommodates the powers of Congress and the President. Based on the text and structure of the Constitution, it respects Congress’s significant authority to create regulatory duties and to assign them to specific officers, yet leaves control over execution to the President. Removal as necessary and sufficient provides a judicially manageable rule for courts to assess challenges to agency structures and a remedy of severability that will allow independent agencies to continue with their regulatory duties. It is a simple rule for maintaining constitutional requirements while leaving most questions about administrative control to the political branches.[19]

”

About the court

District of Columbia Circuit
Court of Appeals
US-CourtOfAppeals-DCCircuit-Seal.png
Judgeships
Posts: 11
Judges: 11
Vacancies: 0
Judges
Chief: Sri Srinivasan
Active judges:
Julianna Michelle Childs, Bradley Garcia, Karen Henderson, Greg Katsas, Patricia Ann Millett, Florence Pan, Cornelia T. L. Pillard, Neomi Rao, Srikanth Srinivasan, Justin Walker, Robert Leon Wilkins

Senior judges:
James Buckley, Harry Edwards, Douglas Ginsburg, Arthur Randolph, Judith Rogers, David Sentelle, David Tatel


The United States Court of Appeals for the District of Columbia Circuit is a federal appellate court with appellate jurisdiction. It hears appeals from the United States District Court for the District of Columbia and its rulings may be appealed to the Supreme Court of the United States.

This court should not be confused with the District of Columbia Court of Appeals, which is equivalent to a state supreme court in the District of Columbia, or with the Federal Circuit Court of Appeals, whose jurisdiction is limited by subject matter. Appeals are heard in the E. Barrett Prettyman Federal Courthouse in Washington, D.C.

Eight judges of the District of Columbia Circuit went on to serve on the Supreme Court of the United States: Fred M. Vinson, Wiley Rutledge, Warren Burger, Ruth Bader Ginsburg, Antonin Scalia, Clarence Thomas, John Roberts, and Brett Kavanaugh.


The U.S. Court of Appeals for the D.C. Circuit has appellate jurisdiction over cases heard by the D.C. Circuit. These cases can include civil and criminal matters that fall under federal law.

Because of the nature of its jurisdiction, the ideologies of the judges who serve on the District of Columbia Circuit is often a partisan issue.[23]

To read opinions published by this court, click here.

The federal nomination process

Federal judges are nominated by the president of the United States and confirmed by the Senate. There are multiple steps to the process:

  • The president nominates an individual for a judicial seat.
  • The nominee fills out a questionnaire and is reviewed by the Senate Judiciary Committee.
  • The Senate Judiciary Committee holds a hearing with the nominee, questioning them about things like their judicial philosophy, past rulings or opinions, etc.
  • As part of this process, the committee sends a blue slip to senators from the home state in which the judicial nomination was received, allowing them to express their approval or disapproval of the nominee.
  • After the hearing, the Senate Judiciary Committee will vote to approve or return the nominee.
  • If approved, the nominee is voted on by the full Senate.
  • If the Committee votes to return the nominee to the president, the president has the opportunity to re-nominate the individual.
  • The Senate holds a vote on the candidate.
  • If the Senate confirms the nomination, the nominee receives a commission to serve a lifelong position as a federal judge.
  • If the Senate does not confirm the nomination, that nominee does not become a judge.

Noteworthy cases

In re: American Federation of Labor and Congress of Industrial Organizations (2020)

See also: Lawsuits about state actions and policies in response to the coronavirus (COVID-19) pandemic, 2020-2021

In re: American Federation of Labor and Congress of Industrial Organizations: On June 11, 2020, the U.S. Court of Appeals for the District of Columbia Circuit denied an emergency petition filed by the AFL-CIO. The labor union had sought a court order (a writ of mandamus) to compel the Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard for Infectious Diseases (ETS) to protect working people from occupational exposure to COVID-19. The AFL-CIO had first petitioned Secretary of Labor Eugene Scalia on March 6, 2020, to issue the ETS, but Scalia did not act on the petition, prompting the AFL-CIO to take the matter before the D.C. Circuit. The labor union cited a federal law requiring issuance of an ETS when "employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards." The D.C. Circuit refused to compel action, saying that OSHA is "entitled to considerable deference" and the agency had "reasonably determined that an ETS is not necessary at this time." The per curiam decision was made by Judges Karen Henderson, an appointee of George H.W. Bush (R), Robert Leon Wilkins, an appointee of Barack Obama (D), and Neomi Rao, an appointee of Donald J. Trump (R). AFL-CIO President Richard Trumka issued a statement the day of the decision, saying, "the court’s action today fell woefully short of fulfilling its duty to ensure that the Occupational Safety and Health Act is enforced.”[24][25][26][27]

D.C. Circuit panel orders judge in Flynn investigation to elaborate on refusal to dismiss the case

On May 7, 2020, the Department of Justice filed a motion to drop charges against Michael Flynn in his case involving investigations into Russian interference in the 2016 presidential election.[28] U.S. District Court judge Emmet Sullivan did not dismiss the case and instead issued an order on May 12, 2020, indicating that he would accept amicus curiae briefs regarding the case.[29]

In response to Sullivan's May 7 order, lawyers representing Flynn filed an appeal with the United States Court of Appeals for the District of Columbia Circuit on May 19, 2020. The appeal requested that the appellate court order the United States District Court for the District of Columbia to dismiss the case and reverse Sullivan's order allowing amicus curiae briefs. The appeal also requested that the district court reassign the case to another judge for any future legal proceedings. Flynn's attorney Sidney Powell wrote, "A district court cannot deny the Government’s motion to dismiss because the judge has 'a disagreement with the prosecution’s exercise of charging authority.' Nor should a court second-guess the Government’s 'conclusion that additional prosecution or punishment would not serve the public interest.'"[30]

On May 21, a three-judge panel from the United States Court of Appeals for the District of Columbia Circuit consisting of Rao, along with Robert Leon Wilkins and Karen Henderson, ordered Sullivan to respond by June 1 to Flynn's challenge to Sullivan's refusal to dismiss the case.[31]

Articles:

See also

External links

Footnotes

  1. ↑ 1.0 1.1 National Review, "President Trump Announces Neomi Rao as D.C. Circuit Nominee," November 13, 2018
  2. ↑ 2.0 2.1 Congress.gov, "PN247 — Neomi J. Rao — The Judiciary," accessed March 14, 2019
  3. ↑ 3.0 3.1 3.2 Federal Judicial Center, "Rao, Neomi Jehangir," accessed March 19, 2019
  4. ↑ 4.0 4.1 4.2 4.3 George Mason University, "Neomi Rao," accessed July 5, 2018
  5. ↑ Fox News, "Neomi Rao confirmed to replace Kavanaugh on D.C. Circuit, winning over key pro-life GOP senator," March 13, 2019
  6. ↑ Courthouse News Service, "Panel Advances Pick to Replace Kavanaugh on DC Bench," February 28, 2019
  7. ↑ New Haven Register, "Senate panel endorses Trump nominee Rao for appeals court," February 28, 2019
  8. ↑ Committee on the Judiciary, "Nominations," February 5, 2019
  9. ↑ Politico, "Trump's pick to replace Kavanaugh grilled for writings on sexual assault," February 5, 2019
  10. ↑ Courthouse News Service, "Senate Panel Grills Trump Pick to Replace Kavanaugh," February 5, 2019
  11. ↑ Politico, "Trump nominates deregulation ace to fill Kavanaugh's seat on D.C. court," November 13, 2018
  12. ↑ Under Senate Rule XXXI, paragraph 6 of the Standing Rules of the Senate, pending nominations are returned to the president if the Senate adjourns sine die or recesses for more than 30 days. Congressional Research Service, "Senate Consideration of Presidential Nominations: Committee and Floor Procedure," April 11, 2017
  13. ↑ WhiteHouse.gov, "Nominations Sent to the Senate," January 23, 2019
  14. ↑ American Bar Association, "Ratings of Article III and Article IV judicial nominees: 116th Congress," accessed March 19, 2019
  15. ↑ 15.0 15.1 The New York Times, "Neomi Rao, the Scholar Who Will Help Lead Trump’s Regulatory Overhaul," July 9, 2017
  16. ↑ Courthouse News Service, "Trump Nominates OMB Official to Fill DC Circuit Vacancy," November 13, 2018
  17. ↑ Heritage Foundation, "The Administrative State and the Structure of the Constitution," June 18, 2018
  18. ↑ 19.0 19.1 19.2 19.3 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  19. ↑ NYU Law Review, "ADMINISTRATIVE COLLUSION: HOW DELEGATION DIMINISHES THE COLLECTIVE CONGRESS," 2015
  20. ↑ The Brookings Institution, "THAT'S NEXT FOR TRUMP'S REGULATORY AGENDA: A CONVERSATION WITH OIRA ADMINISTRATOR NEOMI RAO," January 26, 2018
  21. ↑ Alabama Law Review, "REMOVAL: NECESSARY AND SUFFICIENT FOR PRESIDENTIAL CONTROL," 2014
  22. ↑ Wall Street Journal, "Why D.C. Circuit, at Center of Nominee Fight, Is So Important," November 20, 2013
  23. ↑ United States Court of Appeals for the District of Columbia Circuit, "In re: American Federation of Labor and Congress of Industrial Organizations: Order," June 11, 2020
  24. ↑ United States Court of Appeals for the District of Columbia Circuit, "In re: American Federation of Labor and Congress of Industrial Organizations: Emergency Petition," May 18, 2020
  25. ↑ AFL-CIO, "A Petition to Secretary Scalia for an OSHA Emergency Temporary Standard for Infectious Disease," March 6, 2020
  26. ↑ AFL-CIO, "By Denying a COVID-19 Emergency Temporary Standard, the D.C. Circuit Court Is Endangering America’s Workers," June 11, 2020
  27. ↑ United States v. Flynn, "Motion to Dismiss Case," May 7, 2020
  28. ↑ Politico, "Judge slows down effort to drop Flynn case," May 12, 2020
  29. ↑ Washington Post, "Flynn attorneys ask court to order judge to dismiss conviction," May 19, 2020
  30. ↑ Law.com, "In Flynn Case, Emmet Sullivan Will Brief DC Circuit About Power of Trial Judges," May 21, 2020

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