Law Commons^™

Delegating Tax, James R. Hines Jr., Kyle D. Logue

Michigan Law Review

Congress delegates extensive and growing lawmaking authority to federal administrative agencies in areas other than taxation, but tightly limits the scope of Internal Revenue Service (IRS) and Treasury regulatory discretion in the tax area, specifically not permitting these agencies to select or adjust tax rates. This Article questions why tax policy does and should differ from other policy areas in this respect, noting some of the potential policy benefits of delegation. Greater delegation of tax lawmaking authority would allow administrative agencies to apply their expertise to fiscal policy and afford timely adjustment to changing economic circumstances. Furthermore, delegation of the …

Fun With Administrative Law: A Game For Lawyers And Judges, Adam Babich

Michigan Journal of Environmental & Administrative Law

The practice of law is not a game. Administrative law in particular can implicate important issues that impact people’s health, safety, and welfare and change business’ profitability or even viability. Nonetheless, it can seem like a game. This is because courts rarely explain administrative law rulings in terms of the public purposes and policies at issue in lawsuits. Instead, the courts’ administrative law opinions tend to turn on arcane interpretive doctrines with silly names, such as the “Chevron two-step” or “Chevron step zero.” To advance doctrinal arguments, advocates and courts engage in linguistic debates that resemble a smokescreen—tending to obscure …

A Pragmatic Republic, If You Can Keep It, William R. Sherman

Michigan Law Review

These things we know to be true: Our modern administrative state is a leviathan unimaginable by the Founders. It stands on thin constitutional ice, on cracks between the executive, legislative, and judicial branches. It burdens and entangles state and local governments in schemes that threaten federalism. And it presents an irresolvable dilemma regarding democratic accountability and political independence. We know these things to be true because these precepts animate some of the most significant cases and public law scholarship of our time. Underlying our examination of administrative agencies is an assumption that the problems they present would have been bizarre …

Essential Health Benefits And The Affordable Care Act: Law And Process, Nicholas Bagley, Helen Levy

Articles

Starting in 2014, the Affordable Care Act (ACA) will require private insurance plans sold in the individual and small-group markets to cover a roster of "essential health benefits." Precisely which benefits should count as essential, however, was left to the discretion of the Department of Health and Human Services (HHS). The matter was both important and controversial. Nonetheless, HHS announced its policy by posting on the Internet a thirteen-page bulletin stating that it would allow each state to define essential benefits for itself. On both substance and procedure, the move was surprising. The state-by-state approach departed from the uniform, federal …

Foreword: Rulemaking, Democracy, And Torrents Of E-Mail, Nina A. Mendelson

Articles

This Foreword is meant as an initial foray into the question of what agencies should do with mass public comments, particularly on broad questions of policy. Part I discusses the extent to which congressional control, presidential control, and agency procedures themselves can ensure that agency decisions are democratically responsive. In view of shortcomings in both congressional and presidential control, I underscore the need to focus closely on rulemaking procedures as a source of democratic responsiveness. The possibility that agencies may be systematically discounting certain public submissions raises difficulties, and I present some examples. Part II makes a preliminary case that …

Another Word On The President's Statutory Authority Over Agency Action, Nina A. Mendelson

Articles

In this short symposium contribution, I attempt first to add some further evidence on the interpretive question. That evidence weighs strongly, in my view, in favor of Kagan's conclusion that the terminology does not communicate any particular congressional intent regarding presidential directive authority. Assessed in context, the "whole code" textual analysis presented by Stack does not justify the conclusion that Congress, by delegating to an executive branch official, meant to limit presidential control. Independent agencies excluded, interpreting the terms of simple and presidential delegations to speak to directive authority fails, in general, to make sense of the various statutes. Absent …

Disclosing 'Political' Oversight Of Agency Decision Making, Nina A. Mendelson

Articles

Scholars and courts have divided views on whether presidential supervision enhances the legitimacy of the administrative state. For some, that the President can supervise administrative agencies is key to seeing agency action as legitimate, because of the President's accountability to the electorate. Others, however, have argued that such supervision may simply taint, rather than legitimate, an agency action. The reality is that presidential supervision of agency rulemaking, at least, appears to be both significant and opaque. This Article presents evidence from multiple presidential administrations suggesting that regulatory review conducted by the White House's Office of Management and Budget is associated …

Chevron And Preemption, Nina A. Mendelson

Articles

This Article takes a more functional approach to reconciling preemption doctrine with Chevron when Congress has not expressly delegated preemptive authority to an agency, an approach that considers a variety of concerns, including political accountability, institutional competence, and related concerns. The Article assumes that federalism values, such as ensuring core state regulatory authority and autonomy, are important and can be protected through political processes." It argues that although Congress's "regional structure" might hint at great sensitivity to state concerns, it actually may lead Congress to undervalue some federalism benefits that are more national in nature. Meanwhile, executive agencies generally have …

Seeking Truth For Power: Informational Strategy And Regulatory Policymaking, Cary Coglianese, Richard Zeckhauser, Edward A. Parson

Articles

Information is the lifeblood of regulatory policy. The effective use of governmental power depends on information about conditions in the world, strategies for improving those conditions, and the consequences associated with deploying different strategies. Indeed, this need for information has led legislatures to create specialized committee structures, delegate policy authority to expert agencies, and develop administrative procedures that encourage analysis. Although legal scholars have extensively debated procedures and reforms designed to improve the analytic and scientific basis of regulatory policymaking, they have paid relatively little attention to how regulators gain the information they need for making and implementing regulatory policy. …

Agency Burrowing: Entrenching Policies And Personnel Before A New President Arrives, Nina A. Mendelson

Articles

This Article examines executive branch agency actions concluded just before a new President takes office, such as "midnight" rulemaking and late-term hiring and promotion, which Professor Mendelson collectively refers to as "agency burrowing." Congress, the media, and some commentators have portrayed such activities as unsavory power grabs that undermine the President-elect's ability to direct the functions of administrative agencies. Rather than dismissing agency burrowing out of hand, however, Professor Mendelson argues for a more nuanced approach. In some cases, burrowing can make positive contributions to the democratic responsiveness of agencies, agency accountability, and the "rule of law." A fuller analysis …

Power, Responsibility, And Republican Democracy, Marci A. Hamilton

Michigan Law Review

A Review of Power Without Responsibility: How Congress Abuses the People Through Delegation by David Schoenbrod

The Delegation Doctrine: Could The Court Give It Substance?, David Schoenbrod

Michigan Law Review

Part I of this Article demonstrates the need for a new approach to the delegation doctrine. It shows that the Court has failed to articulate a coherent test of improper delegation and that the alternative tests offered by commentators are not sufficient. Part II then sets forth a proposed test of improper delegation. The basic principles of an approach prohibiting delegations of legislative power are outlined and illustrated. This Article does not, however, attempt anything so grand as to suggest a final definition of the doctrine or to pass broadly on the validity of statutes. Such an encompassing analysis is …

Crisis And Legitimacy: The Administrative Process And American Government, Michigan Law Review

Michigan Law Review

A Book Notice about Crisis and Legitimacy: The Administrative Process and American Government by James O. Freedman

The Role Of The Commodity Futures Trading Commission Under The Commodity Futures, Michigan Law Review

Michigan Law Review

After a brief look at the functions of futures markets, the conditions that led to the enactment of the Commodity Futures Trading Commission Act, and the major provisions of the Act, this note will critically examine the information now available on the major issues left to the Commission to decide, point to additional information that would be useful in making judgments on these issues, and recommend solutions. It will then discuss two problems not considered in the 1974 legislation--export controls and margin oversight--suggesting areas for action by the Commission.

Administrative Agencies And The Court, Frank E. Cooper

Michigan Legal Studies Series

The limits which courts place on the powers of administrative tribunals have particular significance to practicing attorneys and law students. It is largely to the extent that such limits are imposed, that our government remains a government of laws and not a government of men.

The following pages have been written to describe the standards which the courts impose upon administrative agencies, thereby controlling and limiting their powers. More particularly, the writer has sought: (1) to bring together the leading cases in which the courts have laid down the principles that govern frequently litigated questions in contests between the agencies …

A Further Legal Inquiry Into Renegotiation: Ii, Charles W. Steadman

Michigan Law Review

Several issues concerning constitutionality of the Renegotiation Act were discussed in a previous article. That prior inquiry was, of course, not complete, nor is it possible here to exhaust all of these problems. The changes which the Revenue Act of 1943 made in renegotiation together with the manifest importance of this subject and the national interest which has been created by the challenges made concerning its constitutionality warrant further inquiry into this phase of the act. The issues of delegation of legislative authority, impairment of contracts, due process and judicial review, as well as the nature of renegotiation as a …

Administrative Law - Fair Labor Standards Act - Power Of Administrator Of Wage And Hours Division To Delegate Authority To Issue Subpoena Duces Tecum To Subordinates, Jay Sorge

Michigan Law Review

The Regional Director of the Wage and Hour Division, pursuant to authority delegated to him by the administrator signed and issued a subpoena duces tecum ordering petitioner to produce its books and records which were to be used in investigating the wages and the hours of petitioner's employees. After petitioner had failed to comply with this subpoena, the administrator applied to the district court for an order requiring the petitioner to appear and show cause why it should not obey the subpoena duces tecum. This order was issued by the district court, and petitioner appealed after the district court refused …

Reform Of Administrative Procedure, Gilbert H. Montague

Michigan Law Review

On January 22, 1941, the Attorney General's Committee on Administrative Procedure, appointed to investigate the need for procedural reform in various federal administrative tribunals and to suggest improvements therein, submitted its final report and a proposed bill to Attorney General Jackson, who on January 24, 1941, transmitted these to the Senate with his recommendation that the proposed bill receive favorable consideration. Every member of the committee approved this report and this proposed bill, but the approval of four members of the committee was subject to their additional views and recommendations, expressed in statements and in a differing proposed bill. Pending …