Administrative Law Commons^™

Structural Deregulation, Jody Freeman, Sharon Jacobs

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Modern critics of the administrative state portray agencies as omnipotent behemoths, invested with vast delegated powers and largely unaccountable to the political branches of government. This picture, we argue, understates agency vulnerability to an increasingly powerful presidency. One source of presidential control over agencies in particular has been overlooked: the systematic undermining of an agency’s ability to execute its statutory mandate. This strategy, which we call “structural deregulation,” is a dangerous and underappreciated aspect of what then-Professor, now-Justice Elena Kagan termed “presidential administration.”

Structural deregulation attacks the core capacities of the bureaucracy. The phenomenon encompasses such practices as leaving agencies …

Sanctuary Cities And The Power Of The Purse: An Executive Dole Test, Douglas M. Spencer

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A constitutional clash is brewing. Cities and counties are flexing their muscles to frustrate national immigration policy while the federal Executive is threatening to interfere with local law enforcement decision making and funding. Although the federal government generally has plenary authority over immigration law, the Constitution forbids the commandeering of state and local officials to enforce federal law against their will. One exception to this anti-commandeering principle is the Spending Clause of Article I that permits Congress to condition the receipt of federal funds on compliance with federal law. These conditions, according to more than 30 years of Supreme Court …

Making Litigating Citizenship More Fair, Ming H. Chen

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No abstract provided.

The Statutory Separation Of Powers, Sharon B. Jacobs

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Separation of powers forms the backbone of our constitutional democracy. But it also operates as an underappreciated structural principle in subconstitutional domains. This Article argues that Congress constructs statutory schemes of separation, checks, and balances through its delegations to administrative agencies. Like its constitutional counterpart, the “statutory separation of powers” seeks to prevent the dominance of factions and ensure policy stability. But separating and balancing statutory authority is a delicate business: the optimal balance is difficult to calibrate ex ante, the balance is unstable, and there are risks that executive agencies in particular might seek expansion of their authority vis-à-vis …

Corporations As Conduits: A Cautionary Note About Regulating Hypotheticals, Douglas M. Spencer

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No abstract provided.

Cognitive Competence In Executive-Branch Decision Making, Anna Spain Bradley

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The decisions Presidents and those operating under their authority take determine the course of our nation and the trajectory of our lives. Consequently, understanding who has the power and authority to decide has captured both the attention of legal scholars across a variety of fields for many years and the immediate worry of the public since the 2016 Presidential election. Prevailing interventions look for ways that law can offer procedural and institutional reforms that aim to maintain separation of powers and avoid an authoritarian regime. Yet, these views commonly overlook a fundamental factor and a more human one: the individuals …

Administrator-In-Chief: The President And Executive Action In Immigration Law, Ming H. Chen

Publications

This Article provides a framework for understanding the role of the President as the Administrator-in-Chief of the executive branch. Recent presidents, in the face of heated controversy and political division, have relied on executive action to advance their immigration policies. Which of these policies are legitimate, and which are vulnerable to challenge, will determine their legacy. This Article posits that the extent to which the President enhances the procedural legitimacy of agency actions strengthens the legacy of the policies when confronted regarding their substance. This emphasis on shoring up administrative procedure is a form of expertise that should be counted …

Agency Innovation In Vermont Yankee's White Space, Emily S. Bremer, Sharon B. Jacobs

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The literature on “agency discretion” has, with a few notable exceptions, largely focused on substantive policy discretion, not procedural discretion. In this essay, we seek to refocus debate on the latter, which we argue is no less worthy of attention. We do so by defining the parameters of what we call Vermont Yankee’s “white space” — the scope of agency discretion to experiment with procedures within the boundaries established by law (and thus beyond the reach of the courts). Our goal is to begin a conversation about the dimensions of this procedural negative space, in which agencies are free …

Documents, Leaks, And The Boundaries Of Expression: Government Whistleblowing In An Over Classified Age, Susan Nevelow Mart

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No abstract provided.

Towards A Constitutional Architecture For Cooperative Federalism, Philip J. Weiser

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In this Article, Professor Weiser calls for a new conception of federal-state relations to justify existing political practice under cooperative federalism regulatory programs. In particular, Professor Weiser highlights how Congress favors cooperative federalism programs--that combine federal and state authority in creative ways--and has rejected the dual federalism model of regulation--with separate spheres of state and federal authority that current judicial rhetoric often celebrates. Given the increasing dissonance between prevailing political practice and judicial rhetoric, courts will ultimately have to confront three fault lines for current cooperative federalism programs: the legal source of authority for state agencies to implement federal law, …

Introduction, Harold H. Bruff

Publications

As citizens, we ought to ensure that our criticisms of Congress are constructive, lest we damage ourselves. In that spirit, the American Bar Association's Section of Administrative Law and Regulatory Practice created a special Congressional Process Committee to study selected aspects of congressional procedures and to recommend appropriate reforms. The Committee, which I chair, is composed of administrative lawyers who are experienced in legislative practice, or who have worked in Congress. We decided to address selected aspects of congressional structure and procedure for which we believe administrative lawyers possess relevant expertise.

The articles that form this Symposium grew out of …

That The Laws Shall Bind Equally On All: Congressional And Executive Roles In Applying Laws To Congress, Harold H. Bruff

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No abstract provided.

An American Perspective On Environmental Impact Assessment In Australia, Mark Squillace

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No abstract provided.

Separation Of Powers Under The Texas Constitution, Harold H. Bruff

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No abstract provided.

Presidential Management Of Agency Rulemaking, Harold H. Bruff

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No abstract provided.

Public Programs, Private Deciders: The Constitutionality Of Arbitration In Federal Programs, Harold H. Bruff

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No abstract provided.

Foreword, Focus: Clean Water Act’S Section 404, David H. Getches

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No abstract provided.

Independent Counsel And The Constitution, Harold H. Bruff

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No abstract provided.

On The Constitutional Status Of The Administrative Agencies, Harold H. Bruff

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No abstract provided.

Economic Analysis Of Liberty And Property: A Critique, Peter N. Simon

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No abstract provided.

Cooperative Federalism Under The Surface Mining Control And Reclamation Act: Is This Any Way To Run A Government?, Mark Squillace

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No abstract provided.

Legislative Formality, Administrative Rationality, Harold H. Bruff

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No abstract provided.

Liberty And Property In The Supreme Court: A Defense Of Roth And Perry, Peter N. Simon

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No abstract provided.

Judicial Review And The President's Statutory Powers, Harold H. Bruff

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No abstract provided.

Recent Development, Constitutional Law: Protection Against Illegal Search And Seizure--Blackie's House Of Beef, Inc. V. Castillo, No. 79-1057 & 79-2358 (D.C. Cir. July 22, 1981), Stephen James Anaya

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No abstract provided.

The Field Of Public Land Law: Some Connecting Threads And Future Directions, Charles F. Wilkinson

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No abstract provided.

The Public Trust Doctrine In Public Land Law, Charles F. Wilkinson

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No abstract provided.

Presidential Power And Administrative Rulemaking, Harold H. Bruff

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No abstract provided.

Moderator's Remarks, Institutional Due Process In The Twenty-First Century: The Future Of The Hearing Requirement, Harold H. Bruff

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No abstract provided.

Designating Areas Unsuitable For Surface Coal Mining, Mark S. Squillace

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No abstract provided.