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Full-Text Articles in Law
Taking Appropriations Seriously, Gillian E. Metzger
Taking Appropriations Seriously, Gillian E. Metzger
Faculty Scholarship
Appropriations lie at the core of the administrative state and are becoming increasingly important as deep partisan divides have stymied substantive legislation. Both Congress and the President exploit appropriations to control government and advance their policy agendas, with the border wall battle being just one of several recent high-profile examples. Yet in public law doctrine, appropriations are ignored, pulled out for special legal treatment, or subjected to legal frameworks ill-suited for appropriations realities. This Article documents how appropriations are marginalized in a variety of public law contexts and assesses the reasons for this unjustified treatment. Appropriations’ doctrinal marginalization does not …
Reckoning With Adjudication's Exceptionalism Norm, Emily S. Bremer
Reckoning With Adjudication's Exceptionalism Norm, Emily S. Bremer
Journal Articles
Unlike rulemaking and judicial review, administrative adjudication is governed by a norm of exceptionalism. Agencies rarely adjudicate according to the Administrative Procedure Act’s formal adjudication provisions, and the statute has little role in defining informal adjudication or specifying its minimum procedural requirements. Due process has almost nothing to say about the matter.
The result is that there are few uniform, cross-cutting procedural requirements in adjudication, and most hearings are conducted using procedures tailored for individual agencies or programs. This Article explores the benefits and costs of adjudication’s exceptionalism norm, an analysis that implicates the familiar tension between uniformity and specialization …