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Articles 1 - 2 of 2
Full-Text Articles in Administrative Law
Administrative Apparition: Resurrecting The Modern Administrative State’S Legitimacy Crisis With Agency Law Analysis, Tabitha Kempf
Administrative Apparition: Resurrecting The Modern Administrative State’S Legitimacy Crisis With Agency Law Analysis, Tabitha Kempf
Catholic University Law Review
There is an enduring discord among academic and political pundits over the state of modern American government, with much focus on the ever-expanding host of federal agencies and their increasing regulatory, investigative, enforcement, and adjudicatory authority. The growing conglomerate of federal agencies, often unfavorably regarded as the “administrative state,” has invited decades of debate over the validity and proper scope of this current mode of government. Advocates for and against the administrative state are numerous, with most making traditional constitutional arguments to justify or delegitimize the current establishment. Others make philosophical, moral, or practical arguments in support or opposition. Though …
Auer Deference Should Be Dead; Long Live Seminole Rock Deference, John B. Meisel
Auer Deference Should Be Dead; Long Live Seminole Rock Deference, John B. Meisel
Catholic University Journal of Law and Technology
Deference doctrines should be understood in light of the Administrative Procedures Act’s distinction between legislative rules and interpretive rules and should be based on a solid theoretical foundation. Modern Auer deference calls for categorical deference for an agency’s regulatory interpretation of an ambiguous regulation. This is inconsistent with the APA’s characterization of the purpose of an interpretive rule. Properly construed, interpretive rules clarify the meaning of a legal text which should be justified by use of expository reasoning. These rules deserve a lesser form of deference (Skidmore deference), based on an agency’s unique understanding of its own regulations which …