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Articles 1 - 30 of 98
Full-Text Articles in Administrative Law
Brief Of Amici Curiae Administrative And Federal Regulatory Law Professors In Support Of Respondents, Andrew F. Popper
Brief Of Amici Curiae Administrative And Federal Regulatory Law Professors In Support Of Respondents, Andrew F. Popper
Amicus Briefs
Amici write to address the first question presented: whether Chevron should be overruled. Properly understood, it should not. Chevron has been much discussed but not always understood. On the one hand, courts have sometimes misapplied the doctrine or failed to understand its legal foundations. On the other, courts and commentators alike have criticized Chevron, often as a result of such aggressive applications. This case provides an opportunity for the Court to clarify what Chevron does and does not entail, while reaffirming the essential role that judicial recognition of constitutionally delegated policymaking authority plays in federal statutory programs. Many of …
Movement On Removal: An Emerging Consensus On The First Congress, Jed Handelsman Shugerman
Movement On Removal: An Emerging Consensus On The First Congress, Jed Handelsman Shugerman
Faculty Scholarship
What did the “Decision of 1789” decide about presidential removal power, if anything? It turns out that an emerging consensus of scholars agrees that there was not much consensus in the First Congress.
Two more questions follow: Is the “unitary executive theory” based on originalism, and if so, is originalism a reliable method of interpretation based on historical evidence?
The unitary executive theory posits that a president has exclusive and “indefeasible” executive powers (i.e., powers beyond congressional and judicial checks and balances). This panel was an opportunity for unitary executive theorists and their critics to debate recent historical research questioning …
Why The Court Should Reexamine Administrative Law's Chenery Ii Doctrine, Gary S. Lawson, Joseph Postell
Why The Court Should Reexamine Administrative Law's Chenery Ii Doctrine, Gary S. Lawson, Joseph Postell
Faculty Scholarship
Part I of this article begins by discussing some fundamental constitutional principles that were raised, sometimes implicitly and indirectly, in the Chenery cases. Those principles point to limits on administrative adjudication that go well beyond those recognized in current doctrine. We do not here seek to push those principles as far as they can go, though we offer no resistance to anyone who wants to trod that path. Instead, we identify and raise those principles to help understand the scope and limits of actual doctrine. Our modest claims here are that constitutional concerns about at least some classes of agency …
Foreword: New Supreme Court Cases: Duquesne Law Faculty Explains, Wilson Huhn
Foreword: New Supreme Court Cases: Duquesne Law Faculty Explains, Wilson Huhn
Law Faculty Publications
On September 30, 2022, several members of the faculty of the Thomas R. Kline School of Law of Duquesne University presented a Continuing Legal Education program, New Supreme Court Cases: Duquesne Law Faculty Explains, reviewing these developments. Duquesne Law Review graciously invited the faculty panel to contribute their analysis of these cases from the Supreme Court's 2021- 2022 term for inclusion in this symposium issue of the Law Review.
Situating Structural Challenges To Agency Authority Within The Framework Of The Finality Principle, Harold J. Krent
Situating Structural Challenges To Agency Authority Within The Framework Of The Finality Principle, Harold J. Krent
Indiana Law Journal
No abstract provided.
Mutually Intelligible Principles?, Andrew J. Ziaja
Mutually Intelligible Principles?, Andrew J. Ziaja
Pace Law Review
Are the nondelegation, major questions, and political question doctrines mutually intelligible? This article asks whether there is more than superficial resemblance between the nondelegation, major questions, and political question concepts in Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825), an early nondelegation case that has become focal in recent nondelegation and major questions scholarship and jurisprudence. I argue that the nondelegation and political question doctrines do interact conceptually in Wayman, though not as current proponents of the nondelegation doctrine on the Supreme Court seem to understand it. The major questions doctrine by contrast conscripts the nondelegation …
Decoding Nondelegation After Gundy: What The Experience In State Courts Tells Us About What To Expect When We're Expecting, Daniel E. Walters
Decoding Nondelegation After Gundy: What The Experience In State Courts Tells Us About What To Expect When We're Expecting, Daniel E. Walters
Faculty Scholarship
The nondelegation doctrine theoretically limits Congress’s ability to delegate legislative powers to the executive agencies that make up the modern administrative state. Yet, in practice, the U.S. Supreme Court has, since the New Deal, shied away from enforcing any limits on congressional delegation. That may change in the near future. In Gundy v. United States, the Court narrowly upheld a delegation, and a dissent signaled deep doubts about the Court’s longstanding “intelligible principle” standard and offered a new framework to replace it. Subsequent events strongly suggest that the Court is poised to move in the direction contemplated by the dissent …
Violence And Nondelegation, Jacob D. Charles, Darrell A. H. Miller
Violence And Nondelegation, Jacob D. Charles, Darrell A. H. Miller
Faculty Scholarship
Debates over delegation are experiencing a renaissance. These debates presuppose an initial distribution of constitutional authority between actors that cannot be redistributed, or that can be redistributed only according to some clear ex ante set of rules. Nondelegation in this sense often arises in debates about separation of powers and intergovernmental delegation, although scholars have begun applying the concept to delegations to private corporations and other private actors. The public delegation doctrine restricts one branch of government from transferring its constitutional authority to another branch, while the private delegation doctrine limits transfer of government power to private entities. In this …
Removal Of Context: Blackstone, Limited Monarchy, And The Limits Of Unitary Originalism, Jed Handelsman Shugerman
Removal Of Context: Blackstone, Limited Monarchy, And The Limits Of Unitary Originalism, Jed Handelsman Shugerman
Faculty Scholarship
The Supreme Court's recent decisions that the President has an unconditional or indefeasible removal power rely on textual and historical assumptions and a "removal of context." This article focuses on the "executive power" part of the Vesting Clause and particularly the unitary theorists' misuse of Blackstone. Unitary executive theorists overlook the problems of relying on England's limited monarchy: the era's rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. Unitary theorists provide no evidence that executive removal was ever identified as a "royal prerogative" or a default royal power. The …
How Chevron Deference Fits Into Article Iii, Kent H. Barnett
How Chevron Deference Fits Into Article Iii, Kent H. Barnett
Scholarly Works
U.S. Supreme Court Justices Clarence Thomas and Neil Gorsuch, along with Professor Philip Hamburger, assert that Chevron deference-under which courts defer to reasonable agency statutory interpretations-violates Article III. Chevron does so because, they argue, it either permits agencies, not courts, "to say what the law is" or requires judges to forgo independent judgment by favoring the government's position. If they are correct, Congress could not require courts to accept reasonable agency statutory interpretations under any circumstances. This Article does what these critics, perhaps surprisingly, do not do-situates challenges to Chevron within the broad landscape of the Court's current Article III …
Corporatizing Administrative Law For Economic Constitutionalism In Ghana: An African Legal Study, Rowland Atta-Kesson
Corporatizing Administrative Law For Economic Constitutionalism In Ghana: An African Legal Study, Rowland Atta-Kesson
Maurer Theses and Dissertations
As the Government of Ghana partners the private sector to promote district industrialization in Ghana under what is locally called “one-district-one factory” (1D1F), this study argues that it is important to foster economic constitutionalism with legal and institutional innovations. One such innovation is this study’s emergent or grounded theory of corporatized administrative law. The study is unique because it contributes to the so-called new administrative law theory with fresh evidence from Ghana on the interface between the public and private sectors under the district industrialization program. The key problem is the challenge that democratic policy discontinuity poses to business protection …
Putting The Constitutional Horse Before The Cart: Federal Jurisdiction Over Next Generation Environmental Assessment, Anna Johnston
Putting The Constitutional Horse Before The Cart: Federal Jurisdiction Over Next Generation Environmental Assessment, Anna Johnston
LLM Theses
This thesis explores the extent of federal jurisdiction over a next generation environmental assessment (EA) model proposed by Sinclair, Doelle and Gibson. Examining the jurisprudence and literature, it analyses the scope of federal constitutional authority during the triggering, information-gathering and analysis and decision-making stages of project, strategic and regional assessment. A federal next generation EA law focused on impacts on areas of federal authority could be upheld under various federal constitutional heads of power. Federal jurisdiction is most important at decision-making, and authority to trigger an assessment should be based on the low jurisdictional threshold of reasonable probability of federal …
Transparency And The First, Mark Fenster
The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey
The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey
Dickinson Law Review (2017-Present)
It is readily agreed that federal preemption of state tort law alters the balance between federal and state power. Federal preemption is a high-profile defense in almost all modern products liability cases. It is thus surprising to see how little attention has been given to federal preemption by courts and commentators in the opioid litigation. Opioid litigation provides a lens through which I explore the role of state and federal courts and the Food and Drug Administration (FDA) in striking the right balance of power. My purpose here is not to resolve the divide among the few courts that have …
The Untouchable Executive Authority: Trump And The Section 232 Tariffs On Steel And Aluminum, Arim Jenny Kim
The Untouchable Executive Authority: Trump And The Section 232 Tariffs On Steel And Aluminum, Arim Jenny Kim
University of Miami Business Law Review
In 2018, President Trump championed his way through the imposition of the Section 232 Tariffs—a heavy tax on various imports, including steel and aluminum—by broadcasting a supposedly-imminent threat to the U.S. national security. This plea, however, has been criticized as a veil for President Trump’s economic protectionism policy. Meanwhile, others have questioned the constitutionality of the statute creating the President’s authority to impose these tariffs in the first place. This Comment explores the issues arising from President Trump’s Section 232 Tariffs on steel and aluminum: (1) the validity and justiciability of President Trump’s actions under Section 232 of the Trade …
Introduction To The Conference: Commemorating The Life And Legacy Of Charles A. Reich, Rodger D. Citron
Introduction To The Conference: Commemorating The Life And Legacy Of Charles A. Reich, Rodger D. Citron
Touro Law Review
No abstract provided.
Dimensions Of Delegation, Cary Coglianese
Dimensions Of Delegation, Cary Coglianese
All Faculty Scholarship
How can the nondelegation doctrine still exist when the Supreme Court over decades has approved so many pieces of legislation that contain unintelligible principles? The answer to this puzzle emerges from recognition that the intelligibility of any principle dictating the basis for lawmaking is but one characteristic defining that authority. The Court has acknowledged five other characteristics that, taken together with the principle articulating the basis for executive decision-making, constitute the full dimensionality of any grant of lawmaking authority and hold the key to a more coherent rendering of the Court’s application of the nondelegation doctrine. When understood in dimensional …
Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee
Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee
All Faculty Scholarship
This article argues that administrative agencies have been primary interpreters and implementers of the federal Constitution throughout the history of the United States, although the scale and scope of this "administrative constitutionalism" has changed significantly over time as the balance of opportunities and constraints has shifted. Courts have nonetheless cast an increasingly long shadow over the administered Constitution. In part, this is because of the well-known expansion of judicial review in the 20th century. But the shift has as much to do with changes in the legal profession, legal theory, and lawyers’ roles in agency administration. The result is that …
Preserving Life By Ranking Rights, John William Draper
Preserving Life By Ranking Rights, John William Draper
Librarian Scholarship at Penn Law
Border walls, abortion, and the death penalty are the current battlegrounds of the right to life. We will visit each topic and more in this paper, as we consider ranking groups of constitutional rights.
The enumerated rights of the Due Process Clauses of the Fifth and Fourteenth Amendments—life, liberty, and property—merit special treatment. They have a deeper and richer history that involves ranking. Ranking life in lexical priority over liberty and property rights protects life first and maximizes safe liberty and property rights in the absence of a significant risk to life. This is not new law; aspects of it …
The Depravity Of The 1930s And The Modern Administrative State, Gary S. Lawson, Steven Calabresi
The Depravity Of The 1930s And The Modern Administrative State, Gary S. Lawson, Steven Calabresi
Faculty Scholarship
Gillian Metzger’s 2017 Harvard Law Review foreword, entitled 1930s Redux: The Administrative State Under Siege, is a paean to the modern administrative state, with its massive subdelegations of legislative and judicial power to so-called “expert” bureaucrats, who are layered well out of reach of electoral accountability yet do not have the constitutional status of Article III judges. We disagree with this celebration of technocratic government on just about every level, but this Article focuses on two relatively narrow points.
First, responding more to implicit assumptions that pervade modern discourse than specifically to Professor Metzger’s analysis, we challenge the normally unchallenged …
The Death Of Judicial Independence In Turkey: A Lesson For Others, Edwin L. Felter Jr., Oyku Didem Aydin
The Death Of Judicial Independence In Turkey: A Lesson For Others, Edwin L. Felter Jr., Oyku Didem Aydin
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Administrative Constitutionalism And The Unity Of Public Law, Matthew Lewans
Administrative Constitutionalism And The Unity Of Public Law, Matthew Lewans
Osgoode Hall Law Journal
Public law scholarship in the common law tradition often aims at elucidating a connection between law and constitutional values like equality, due process, and the rule of law. However, in their quest to reveal the morality of public law, common lawyers often focus their attention on judicial interpretations of constitutional values to the exclusion of other sources of constitutional jurisprudence. The author argues that the traditional fascination with courts as the primary or exclusive arbiters of constitutional values should be tempered and supplemented by recognizing the valuable contributions of administrative officials who interpret and enforce constitutional norms when exercising statutorily …
Federalism, Convergence, And Divergence In Constitutional Property, Gerald S. Dickinson
Federalism, Convergence, And Divergence In Constitutional Property, Gerald S. Dickinson
Articles
Federal law exerts a gravitational force on state actors, resulting in widespread conformity to federal law and doctrine at the state level. This has been well recognized in the literature, but scholars have paid little attention to this phenomenon in the context of constitutional property. Traditionally, state takings jurisprudence—in both eminent domain and regulatory takings—has strongly gravitated towards the Supreme Court’s takings doctrine. This long history of federal-state convergence, however, was disrupted by the Court’s controversial public use decision in Kelo v. City of New London. In the wake of Kelo, states resisted the Court’s validation of the …
The Administrative State: Problems Associated With Congressional Intent, Statutory Interpretation, And The Powers Granted To Administrative Agencies, Serje Havandjian
The Administrative State: Problems Associated With Congressional Intent, Statutory Interpretation, And The Powers Granted To Administrative Agencies, Serje Havandjian
Journal of the National Association of Administrative Law Judiciary
While reading this article, two questions should be kept in mind: (1) why the Court held that the TSA promulgated whistleblowing regulation was not considered to have the force and effect of law, and how that effects other regulations, and (2) how should the Supreme Court respond if a conflict of congressional intent and statutory interpretation arises within another regulatory or administrative agency's internal scheme for regulating such issues? With a careful analysis of statutory interpretation and determining congressional intent, and some luck, this article will try to answer these questions. Ultimately, what we will find is that although Congress …
Cognitive Competence In Executive-Branch Decision Making, Anna Spain Bradley
Cognitive Competence In Executive-Branch Decision Making, Anna Spain Bradley
Publications
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 …
The Emptiness Of Decisional Limits: Reconceiving Presidential Control Of The Administrative State, Cary Coglianese
The Emptiness Of Decisional Limits: Reconceiving Presidential Control Of The Administrative State, Cary Coglianese
All Faculty Scholarship
The heads of administrative agencies exercise authority delegated directly to them through legislation. To what extent, then, may presidents lawfully direct these agency heads to carry out presidential priorities? A prevailing view in administrative law holds that, although presidents may seek to shape and oversee the work of agency officials, they cannot make decisions for those officials. Yet this approach of imposing a decisional limit on presidential control of the administrative state in reality fails to provide any meaningful constraint on presidential power and actually risks exacerbating the politicization of constitutional law. A decisional limit presents these problems because the …
From Treaties To International Commitments: The Changing Landscape Of Foreign Relations Law, Jean Galbraith
From Treaties To International Commitments: The Changing Landscape Of Foreign Relations Law, Jean Galbraith
All Faculty Scholarship
Sometimes the United States makes international commitments in the manner set forth in the Treaty Clause. But far more often it uses congressional-executive agreements, sole executive agreements, and soft law commitments. Foreign relations law scholars typically approach these other processes from the perspective of constitutional law, seeking to determine the extent to which they are constitutionally permissible. In contrast, this Article situates the myriad ways in which the United States enters into international commitments as the product not only of constitutional law, but also of international law and administrative law. Drawing on all three strands of law provides a rich …
Making Treaty Implementation More Like Statutory Implementation, Jean Galbraith
Making Treaty Implementation More Like Statutory Implementation, Jean Galbraith
All Faculty Scholarship
Both statutes and treaties are the “supreme law of the land,” and yet quite different practices have developed with respect to their implementation. For statutes, all three branches have embraced the development of administrative law, which allows the executive branch to translate broad statutory directives into enforceable obligations. But for treaties, there is a far more cumbersome process. Unless a treaty provision contains language that courts interpret to be directly enforceable, they will deem it to require implementing legislation from Congress. This Article explores and challenges the perplexing disparity between the administration of statutes and treaties. It shows that the …
Administrator-In-Chief: The President And Executive Action In Immigration Law, Ming H. Chen
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 …
Policing As Administration, Christopher Slobogin
Policing As Administration, Christopher Slobogin
Vanderbilt Law School Faculty Publications
Police agencies should be governed by the same administrative principles that govern other agencies. This simple precept would have significant implications for regulation of police work, in particular the type of suspicionless, group searches and seizures that have been the subject of the Supreme Court's special needs jurisprudence (practices that this Article calls "panvasive"). Under administrative law principles, when police agencies create statute-like policies that are aimed at largely innocent categories of actors-as they do when administering roadblocks, inspection regimes, drug testing programs, DNA sampling programs, and data collection-they should have to engage in notice-and-comment rulemaking or a similar democratically …