Law Commons^™

Chevron And Stare Decisis, Kent Barnett, Christopher J. Walker

Articles

This Term, in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. U.S. Department of Commerce, the Supreme Court will expressly consider whether to overrule Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.—a bedrock precedent in administrative law that a reviewing court must defer to a federal agency’s reasonable interpretation of an ambiguous statute that the agency administers. In our contribution to this Chevron on Trial Symposium, we argue that the Court should decline this invitation because the pull of statutory stare decisis is too strong to overcome.

Responding To Alternatives, Daniel T. Deacon

Michigan Law Review

This Article is the first to comprehensively analyze administrative agencies’ obligation to respond to alternatives to their chosen course of action. The obligation has been around at least since the Supreme Court’s decision in Motor Vehicle Manufacturers Ass’n of the United States, Inc. v. State Farm, and it has mattered in important cases. Most recently, the Supreme Court invoked the obligation as the primary ground on which to invalidate the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program. The obligation to respond to alternatives is also frequently invoked in the lower courts and in the …

Revisiting Immigration Exceptionalism In Administrative Law, Christopher J. Walker

Reviews

With all the changes swirling in administrative law, one trend seems to be getting less attention than perhaps it should: the death of regulatory exceptionalism in administrative law. For decades, many regulatory fields—such as tax, intellectual property, and antitrust—viewed themselves as exceptional, such that the normal rules of the road in administrative law do not apply. The Supreme Court and the lower courts have increasingly rejected such exceptionalism in many regulatory contexts, emphasizing that the Administrative Procedure Act (APA) and related administrative law doctrines are the default rules unless Congress has clearly chosen to depart from them by statute in …

The National Security Consequences Of The Major Questions Doctrine, Timothy Meyer, Ganesh Sitaraman

Michigan Law Review

The rise of the major questions doctrine—the rule that says that in order to delegate to the executive branch the power to resolve a “question of ‘deep economic and political significance’ that is central to [a] statutory scheme,” Congress must do so expressly—threatens to unmake the modern executive’s authority over foreign affairs, especially in matters of national security and interstate conflict. In the twenty-first century, global conflicts increasingly involve economic warfare, rather than (or in addition to) the force of arms.

In the United States, the executive power to levy economic sanctions and engage in other forms of economic warfare …

Temporary Nuclear Waste Siting Is A Major Problem But Not A Major Question, Dylan Cohen

Michigan Journal of Environmental & Administrative Law

Mitigating global warming requires robust change in the country’s energy policy. One area ripe for such change is nuclear waste storage, which has long confounded the federal government. The Nuclear Regulatory Commission (NRC) seems to have found a solution. It empowered private industry. But it might have run into a problem: the major questions doctrine. Though the major questions doctrine can indeed operate to constrain overzealous agencies, the NRC has acted within its authority, and private industry—by virtue of its Executive-branch grant of authority—should be allowed to help.

Interpreting The Administrative Procedure Act: A Literature Review, Christopher J. Walker, Scott Macguidwin

Law & Economics Working Papers

The modern administrative state has changed substantially since Congress enacted the Administrative Procedure Act (APA) in 1946. Yet Congress has done little to modernize the APA in those intervening seventy-seven years. That does not mean the APA has remained unchanged. Federal courts have substantially refashioned the APA’s requirements for administrative procedure and judicial review of agency action. Perhaps unsurprisingly, calls to return to either the statutory text or the original meaning (or both) have intensified in recent years. “APA originalism” projects abound.

As part of the Notre Dame Law Review’s Symposium on the History of the Ad- ministrative Procedure Act …

Inventing Deportation Arrests, Lindsay Nash

Michigan Law Review

At the dawn of the federal deportation system, the nation’s top immigration official proclaimed the power to authorize deportation arrests “an extraordinary one” to vest in administrative officers. He reassured the nation that this immense power—then wielded by a cabinet secretary, the only executive officer empowered to authorize these arrests—was exercised with “great care and deliberation.” A century later, this extraordinary power is legally trivial and systemically exercised by low-level enforcement officers alone. Consequently, thousands of these officers—the police and jailors of the immigration system— now have the power to solely determine whether deportation arrests are justified and, therefore, whether …

Trust, Trustworthiness, And Misinformation Shared By The Government, Nicholson Price Ii

Reviews

Where does trusted information come from? In a world of misinformation, where everyone is skeptical of everything, at least we can rely on expert, authoritative government agencies like the Environmental Protection Agency, the Centers for Disease Control, the Patent Office, and the Food and Drug Administration, right? Right?

The Dormant Commerce Clause As A Way To Combat The Anti-Competitive, Anti-Transmission-Development Effects Of State Right Of First Refusal Laws For Electricity Transmission Construction, Walker Mogen

Michigan Journal of Environmental & Administrative Law

To quickly decarbonize the electricity grid, new sources of renewable energy have to be connected to the grid. To connect these sources of energy to the grid, the rate of construction of new electricity infrastructure must increase quickly. The process to construct new electricity transmission infrastructure, however, is filled with chokepoints that slow its construction. State right of first refusal laws for transmission construction are one the things slowing the build out of the grid. These laws limit which companies can construct new transmission infrastructure to utilities and other companies already operating transmission infrastructure in a state. This Note, using …

Outsourcing Agency Rulemaking, Christopher J. Walker

Reviews

When it comes to understanding the political dynamics of agency rulemaking, the place to start is Rachel Potter’s book Bending the Rules: Procedural Politicking in the Bureaucracy, about which the Yale Journal on Regulation published a blog symposium in 2019. Through a mix of qualitative and quantitative methods, Potter explores how agency officials—both career civil servants and political appointees—play a role in the rulemaking process and leverage procedural rules to help advance their preferred policy outcomes.

Congress's Anti-Removal Power, Christopher J. Walker, Aaron Nielson

Articles

Statutory restrictions on presidential removal of agency leadership enable agencies to act independently from the White House. Yet since 2020, the U.S. Supreme Court has held two times that such restrictions are unconstitutional precisely because they prevent the President from controlling policymaking within the executive branch. Recognizing that a supermajority of the Justices now appears to reject or at least limit the principle from Humphrey’s Executor that Congress may prevent the President from removing agency officials based on policy disagreement, scholars increasingly predict that the Court will soon further weaken agency independence if not jettison it altogether.

This Article challenges …

Assessing Visions Of Democracy In Regulatory Policymaking, Shoba Sivaprasad Wadhia, Christopher J. Walker

Articles

Motivated in part by Congress’s failure to legislate, presidents in recent years seem to have turned even more to the regulatory process to make major policy. It is perhaps no coincidence that the feld of administrative law has similarly seen a resurgence of scholarship extolling the virtues of democratic accountability in the modern administrative state. Some scholars have even argued that bureaucracy is as much as if not more democratically legitimate than Congress, either in the aggregative or deliberative sense, or both.

Pretext, Reality, And Verisimilitude: Truth-Seeking In The Supreme Court, Robert N. Weiner

University of Michigan Journal of Law Reform

The assault on truth in recent public discourse makes it especially important that judicial decisions about Executive actions reflect the world as it is. Judges should not assume some idealized reality where good faith prevails, the motives of public officials are above reproach, and administrative processes are presumptively regular. Unfortunately, however, the Supreme Court has acted on naïve or counterfactual assumptions that limit judicial review of administrative or Presidential action. Such intentional judicial blindness or suspension of justified disbelief—such lack of verisimilitude—can sow doubt regarding the Court’s candor and impartiality.

In analyzing the Court’s fealty to objective reality in its …

Responding To The New Major Questions Doctrine, Christopher J. Walker

Articles

The new major questions doctrine has been a focal point in administrative law scholarship and litigation over the past year. One overarching theme is that the doctrine is a deregulatory judicial power grab from both the executive and legislative branches. It limits the president’s ability to pursue a major policy agenda through regulation. And in the current era of political polarization, Congress is unlikely to have the capacity to pass legislation to provide the judicially required clear authorization for agencies to regulate major questions. Especially considering the various “vetogates” imposed by Senate and House rules, it is fair to conclude …

Interpreting The Administrative Procedure Act: A Literature Review, Christopher J. Walker

Articles

The modern administrative state has changed substantially since Congress enacted the Administrative Procedure Act (APA) in 1946. Yet Congress has done little to modernize the APA in those intervening seventy-seven years. That does not mean the APA has remained unchanged. Federal courts have substantially refashioned the APA’s requirements for administrative procedure and judicial review of agency action. Perhaps unsurprisingly, calls to return to either the statutory text or the original meaning (or both) have intensified in recent years. “APA originalism” projects abound.

As part of the Notre Dame Law Review’s Symposium on the History of the Administrative Procedure Act and …

Cultural Resources, Conquest, And Courts: How State Court Approaches To Statutory Interpretation Diminish Indigenous Cultural Resources Protections In California, Hawai‘I, And Washington, Lauren Ashley Week

Michigan Journal of Environmental & Administrative Law

Critical Race Theory identifies two of the United States’ original sins: slavery and conquest; yet, while the former is well known, the latter is simultaneously obvious and unknown, creating a disconnect between the history of violent conquest to the disparities that continue to afflict indigenous communities today. This lack of understanding and acknowledgement also permeates the federal courts—an issue extensively documented by Critical Race Theory and federal Indian law academics. Yet, limited scholarship has interrogated if and how state judicial systems may parallel the failures of federal benches. This Note examines the “hidden,” yet enduring impact of conquest by applying …

From Four Horsemen To The Rule Of Six: The Deconstruction Of Judicial Deference, Keith W. Rizzardi

Michigan Journal of Environmental & Administrative Law

In its tumultuous 2022 term, the Supreme Court rebalanced the separation of powers, again. A tradition of self-restraint has evolved through case law and statutes when the judiciary reviews the actions of the other branches of government. The judiciary often accepts congressional judgments as to whether laws are necessary and proper and defers to executive agency interpretations of those congressional acts. The historical notion of judicial deference, however, earned criticism due to concerns about the potential unchecked decision-making power of unelected executive agency bureaucrats. The emerging alternative system might be worse.

History offers parallels. During the New Deal, a core …

Whither Rationality?, Shi-Ling Hsu

Michigan Law Review

A Review of Reviving Rationality: Saving Cost-Benefit Analysis for the Sake of the Environment and Our Health. By Michael A. Livermore and Richard L. Revesz.

Administrative Sabotage, David L. Noll

Michigan Law Review

Government can sabotage itself. From the president’s choice of agency heads to agency budgets, regulations, and litigating positions, presidents and their appointees have undermined the very programs they administer. But why would an agency try to put itself out of business? And how can agencies that are subject to an array of political and legal checks sabotage statutory programs?

This Article offers an account of the “what, why, and how” of administrative sabotage that answers those questions. It contends that sabotage reflects a distinct mode of agency action that is more permanent, more destructive, and more democratically illegitimate than more-studied …

The New Major Questions Doctrine, Daniel Deacon, Leah Litman

Law & Economics Working Papers

This article critically analyzes significant recent developments in the major questions doctrine. It highlights important shifts in what role the majorness of an agency policy plays in statutory interpretation, as well as changes in how the Court determines whether an agency policy is major. After the Supreme Court’s October 2021 term, the “new” major questions doctrine operates as a clear statement rule that directs courts not to discern the plain meaning of a statute using the normal tools of statutory interpretation, but to require explicit and specific congressional authorization for certain agency policies. Even broadly worded, otherwise unambiguous statutes do …

Un-Repeal: Reviving The Arms Control Impact Statements, David A. Koplow

Michigan Journal of Environmental & Administrative Law

From the late 1970s into the early 1990s, U.S. federal law mandated the executive branch to prepare annual analytical documents known as Arms Control Impact Statements (ACIS). These instruments – obviously patterned after the Environmental Impact Statements (EIS), which had been inaugurated only a few years previously – were intended to prod the national security community to undertake more rigorous, multi-dimensional study of major weapons programs, and to provide Congress and the American public with enhanced, timely information about key arms procurement decisions.

However, unlike the EIS process – which rapidly became institutionalized, and which has proliferated to multiple tiers …

Removing The State Opt-Out For Demand Response, Ben Carroll

Michigan Journal of Environmental & Administrative Law

In 1935, Congress enacted the Federal Power Act. The Act split jurisdiction over electricity generation and distribution between the Federal and state governments. The Act delegated to the Federal government jurisdiction over interstate wholesales and interstate transmission. The Act gave state governments jurisdiction over intrastate wholesales, intrastate transmission, generation, local distribution, and retail sales. Big, vertically-integrated monopoly utilities dominated the market before and for 60 years after the passage of the Act. However, over time, changes in technology and policy in the wholesale market eroded the dominance of those vertically-integrated monopoly utilities and complicated this jurisdictional bright line.

In 2011, …

Dismantling The Wall, Charles Shane Ellison, Anjum Gupta

Michigan Law Review Online

In this Essay, we will summarize the status quo of this crisis. We will highlight warning signs that began to appear even before the Trump Administration to understand how we reached this point. We will then propose solutions to chart a pathway forward, exploring strategies for implementing lasting reforms aimed at tearing down this administrative wall and replacing it with a more fair and welcoming system.

A Congressional Review Act For The Major Questions Doctrine, Christopher J. Walker

Articles

Last Term, the Supreme Court recognized a new major questions doctrine, which requires Congress to provide clear statutory authorization for an agency to regulate on a question of great economic or political significance. This new substantive canon of statutory interpretation will be invoked in court challenges to federal agency actions across the country, and it will no doubt spark considerable scholarly attention. This Essay does not wade into those doctrinal or theoretical debates. Instead, it suggests one way Congress could respond: by enacting a Congressional Review Act for the major questions doctrine. In other words, Congress could establish a fast-track …

Significant Impacts Under Nepa: The Social Cost Of Greenhouse Gases As A Tool To Mitigate Climate Change, Sydney Hofferth

Michigan Journal of Environmental & Administrative Law

The increased severity of the impacts of climate change demand a re-evaluation of the legal tools that could combat it. The National Environmental Policy Act (“NEPA”) was passed to force government agencies to account for the environmental impacts of their actions. However, as it exists today, NEPA fails to require agencies to consider how their actions will mitigate or exacerbate climate change. This Note argues that agencies should be required to consider the social cost of the greenhouse gases associated with potential major actions at various stages of NEPA analysis. This change would result in increased transparency and public engagement …

Evaporating Into Thin Air: The Prosecution Of Air Pollution Crimes During The Trump Administration, Joshua Ozymy, Melissa Jarrell Ozymy

Michigan Journal of Environmental & Administrative Law

Antagonistic to environmental regulation, the Trump Administration sought to significantly roll back federal clean air law enforcement. Yet, we know very little about the impact of the Administration on air pollution criminal enforcement. Through content analysis of all EPA criminal investigations leading to prosecution, we analyze patterns in charging and sentencing and draw out the broader themes in air pollution prosecutions during this period. Our results show a sizable drop in prosecutions compared to the Obama Administration. Although prosecutors managed to pursue serious crimes involving significant harm and criminal conduct and secure over $2.9 billion in monetary penalties, roughly 160 …

Eia Directive Procedural Guarantees As Substantive Individual Rights In Il V. Land Nordrhein-Westfalen, Alexis Haddock

Michigan Journal of Environmental & Administrative Law

Environmental impact assessments serve as a necessary tool for attaining the goals of the Aarhus Convention and the EIA Directive (2011/92). The Aarhus Convention and EIA Directive aim to guarantee the public’s right to participate in environmental decision-making, to be provided information necessary to effectively participate, and to have access to a procedure to challenge a decision. The ECJ’s recent case IL v. Land Nordrhein-Westfalen articulates the current interpretation of the European Union Member States’ obligations under the EIA Directive to provide individuals standing to challenge impact assessment decisions. This opinion reaffirmed that in cases where the procedural defect did …

Researching Administrative Law, Keith Lacy

Law Librarian Scholarship

Administrative law is a broad subject area concerning the laws and procedures governing administrative agencies. It also encompasses the substantive law produced by those agencies — most commonly in the form of regulations (rules) or agency decisions. This article highlights a few major resources for researching administrative law in the United States.

Structured To Fail: Lessons From The Trump Administration’S Faulty Pandemic Planning And Response, Alejandro E. Camacho, Robert L. Glicksman

Michigan Journal of Environmental & Administrative Law

The Trump Administration’s response to the COVID-19 pandemic is a stark reminder that poorly designed government can be a matter of life and death. This article explains how the Administration’s careless and delayed response to the crisis was made immeasurably worse by its confused and confusing reallocation of authority to perform or supervise tasks essential to reducing the virus’s ravages.

After exploring the rationale for and impact of prior federal reorganizations responding to public health crises, the article shows how a combination of unnecessary and unhelpful overlapping authority and a thoughtless mix of centralized and decentralized authority contributed to the …

Adding Bite To The Zone Of Twilight: Applying Kisor To Revitalize The Youngstown Tripartite, Zachary W. Singer

Michigan Journal of Environmental & Administrative Law

In the half century and more since Justice Jackson’s famous concurrence in Youngstown Sheet & Tube Co. v. Sawyer, the fog surrounding acceptable executive power in national security and foreign affairs has only thickened. Today, whether presidents are responding to the challenges of an amorphous global war on terrorism or a global pandemic, they act against a backdrop of ambiguous constitutional and statutory authorization and shifting precedent. While Justice Jackson outlined zones of presidential power by tying that power to congressional acts, the Court subsequently watered down the test by looking to other factors, like legislative intent. At other …