Law Commons^™

How Agencies Can Better Regulate For Racial Justice, Olatunde C.A. Johnson

Faculty Scholarship

On his first day in office, President Joseph R. Biden signed an executive order to advance racial equity throughout the federal government by taking a “systematic approach to embedding fairness in decision-making,” redressing inequities, and advancing equal opportunity in agency policies and programs.

This order is an important step. President Biden’s executive order promises new, proactive engagement by the administrative state to promote racial equity and other dimensions of inclusion in agency programs. But federal administrative agencies have played a key role in structuring racial segregation and sustaining racial inequality in housing, health care, access to transit, and wealth. President …

Government Ethics In The Age Of Trump, Adam Raviv

University of Michigan Journal of Law Reform

Americans’ trust in government officials has never been lower. Despite the intense public focus on ethics in government in recent years, legal scholarship on the subject has been sparse. This Article fills the gap by examining the ethics regime of the federal executive branch in depth, with a discussion of both the applicable ethics standards and the agencies and offices that are charged with ensuring that government officials comply with those standards. The Article describes how the current system heavily emphasizes prevention, education, and highly detailed disclosures while it rarely enforces the law against wrongdoers. A federal official in the …

Prosecuting Executive Branch Wrongdoing, Julian A. Cook, Iii

University of Michigan Journal of Law Reform

Attorney General William Barr’s handling of Robert Mueller’s Report on the Investigation into Russian Interference in the 2016 Presidential Election was undeniably controversial and raised meaningful questions regarding the impartiality of the Department of Justice. Yet, Barr’s conduct, which occurred at the conclusion of the Mueller investigation, was merely the caboose at the end of a series of controversies that were coupled together from the outset of the investigation. Ensnarled in dissonance from its inception, the Mueller investigation was dogged by controversies that ultimately compromised its legitimacy.

Public trust of criminal investigations of executive branch wrongdoing requires prosecutorial independence. To …

The Permissibility Of Acting Officials: May The President Work Around Senate Confirmation?, Nina A. Mendelson

Articles

Recent presidential reliance on acting agency officials, including an acting Attorney General, acting Secretaries of Defense, and an acting Secretary of Homeland Security, as well as numerous below-Cabinet officials, has drawn significant criticism from scholars, the media, and members of Congress. They worry that the President may be pursuing illegitimate goals and seeking to bypass the critical Senate role under the Appointments Clause. But Congress has authorized—and Presidents have called upon—such individuals from the early years of the Republic to the present. Meanwhile, neither formalist approaches to the constitutional issue, which seem to permit no flexibility, nor current Supreme Court …

Stop Regulating Government Paperwork With More Government Paperwork, Joseph D. Condon

Michigan Journal of Environmental & Administrative Law

The Paperwork Reduction Act (PRA) is an often-ignored law with a large impact. Federal agencies cannot ask the same questions of more than nine people or entities without submitting a proposed information collection to the White House Office of Management and Budget for review, a process that can take up to a year to complete. In an attempt to regulate the amount of paperwork foisted on the public, the PRA has created an enormous amount of paperwork for federal agencies—without any meaningful reduction in the paperwork burden faced by the public. Yet, likely because the burden of the PRA is …

Alj Support Systems: Staff Attorneys And Decision Writers, Russell L. Weaver

Russell L. Weaver

No abstract provided.

How Safe Is Too Safe? Exemption 7(F) And The Withholding Of Critical Documents, Grant Snyder

Michigan Journal of Environmental & Administrative Law

The Freedom of Information Act (FOIA) is one of the main tools used by the American public to investigate the actions of its government. Congress created FOIA in an attempt to make most government documents available to the public. Today, the FOIA process favors government withholding. This bias comes from institutional issues in courts’ review of FOIA challenges.

In the environmental and administrative law context, federal agencies use many exemptions to withhold government records from citizen and non-profit groups. Agencies that are tasked with permitting and regulating energy pipelines and other environmentally-sensitive infrastructure now regularly cite Exemption 7(F). These agencies …

Loopholes For Circumventing The Constitution: Unrestrained Bulk Surveillance On Americans By Collecting Network Traffic Abroad, Axel Arnbak, Sharon Goldberg

Michigan Telecommunications & Technology Law Review

This Article reveals interdependent legal and technical loopholes that the US intelligence community could use to circumvent constitutional and statutory safeguards for Americans. These loopholes involve the collection of Internet traffic on foreign territory, and leave Americans as unprotected as foreigners by current United States (US) surveillance laws. This Article will also describe how modern Internet protocols can be manipulated to deliberately divert American’s traffic abroad, where traffic can then be collected under a more permissive legal regime (Executive Order 12333) that is overseen solely by the executive branch of the US government. Although the media has reported on some …

Unpacking Eme Homer: Cost, Proportionality, And Emissions Reductions, Daniel A. Farber

Michigan Journal of Environmental & Administrative Law

Interstate air pollution can prevent even the most diligent downwind state from attaining the air quality levels required by federal law. Allocating responsibility for emissions cuts when multiple upwind states contribute to downwind air quality violations presents a particularly difficult problem. Justice Ginsburg’s opinion for the Court in EPA v. EME Homer City Generator, L.P., gives EPA broad discretion to craft regulatory solutions for this problem. Although the specific statutory provision at issue was deceptively simple, the underlying problem was especially complex because of the large number of states involved. Indeed, neither the majority opinion nor the dissent seems to …

Inside Agency Statutory Interpretation, Christopher J. Walker

Christopher J. Walker

The Constitution vests all legislative powers in Congress, yet Congress grants expansive lawmaking authority to federal agencies. As positive political theorists have long explored, Congress intends for federal agencies to faithfully exercise their delegated authority, but ensuring fidelity to congressional wishes is difficult due to asymmetries in information, expertise, and preferences that complicate congressional control and oversight. Indeed, this principal-agent problem has a democratic and constitutional dimension, as the legitimacy of administrative governance may well depend on whether the unelected bureaucracy is a faithful agent of Congress. Despite the predominance of lawmaking by regulation and the decades-long application of principal-agent …

Taking Public Access To The Law Seriously: The Problem Of Private Control Over The Availability Of Federal Standards, Nina A. Mendelson

Articles

In the 1930s, Harvard professor Erwin Griswold famously complained about the enormous numbers of New Deal regulations that were obscurely published on individual sheets or in “separate paper pamphlets.” Finding these binding federal rules was difficult, leading to “chaos” and an “intolerable” situation. Congress responded, requiring that agencies publish all rules in the Federal Register and in the Code of Federal Regulations (CFR). Currently, recent federal public laws, the entire U.S. Code, the Federal Register, and the CFR are all freely available online as well as in governmental depository libraries. But with respect to thousands of federal regulations, the clock …

Intelligence Legalism And The National Security Agency’S Civil Liberties Gap, Margo Schlanger

Articles

Since June 2013, we have seen unprecedented security breaches and disclosures relating to American electronic surveillance. The nearly daily drip, and occasional gush, of once-secret policy and operational information makes it possible to analyze and understand National Security Agency activities, including the organizations and processes inside and outside the NSA that are supposed to safeguard American’s civil liberties as the agency goes about its intelligence gathering business. Some have suggested that what we have learned is that the NSA is running wild, lawlessly flouting legal constraints on its behavior. This assessment is unfair. In fact, the picture that emerges from …

The Uncertain Effects Of Senate Confirmation Delays In The Agencies, Nina A. Mendelson

Articles

As Professor Anne O’Connell has effectively documented, the delay in Senate confirmations has resulted in many vacant offices in the most senior levels of agencies, with potentially harmful consequences to agency implementation of statutory programs. This symposium contribution considers some of those consequences, as well as whether confirmation delays could conceivably have benefits for agencies. I note that confirmation delays are focused in the middle layer of political appointments—at the assistant secretary level, rather than at the cabinet head—so that formal functions and political oversight are unlikely to be halted altogether. Further, regulatory policy making and even agenda setting can …

Offices Of Goodness: Influence Without Authority In Federal Agencies, Margo Schlanger

Articles

Inducing governmental organizations to do the right thing is the central problem of public administration. Especially sharp challenges arise when “the right thing” means executing not only a primary mission but also constraints on that mission (what Philip Selznick aptly labeled “precarious values”). In a classic example, we want police to prevent and respond to crime and maintain public order, but to do so without infringing anyone’s civil rights. In the federal government, if Congress or another principal wants an executive agency to pay attention not only to its mission, but also to some other constraining or even conflicting value—I …

Presidential Inaction And The Separation Of Powers, Jeffrey A. Love, Arpit K. Garg

Michigan Law Review

Imagine two presidents. The first campaigned on an issue that requires him to expand the role of the federal government-—maybe it was civil rights legislation or stricter sentencing for federal criminals. In contrast, the second president pushes policies—-financial deregulation, perhaps, or drug decriminalization—-that mean less government involvement. Each is elected in a decisive fashion, and each claims a mandate to advance his agenda. The remaining question is what steps each must take to achieve his goals. The answer is clear, and it is surprising. To implement his preferred policies, the first president faces the full gauntlet of checks and balances-—from …

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 …

The Equal Employment Opportunity Commission And Structural Reform Of The American Workplace, Margo Schlanger, Pauline T. Kim

Articles

In one of its most-watched recent cases, the United States Supreme Court struck down a class action alleging that Wal-Mart stores discriminated against female employees in pay and promotion decisions. The plaintiffs alleged that Wal-Mart’s corporate culture and highly discretionary decision-making practices led to sex discrimination on a company-wide basis, and they sought injunctive relief as well as backpay for individual employees. Reversing the Court of Appeals for the Ninth Circuit, the Supreme Court held in Wal-Mart v. Dukes that the proposed class failed to meet the requirements for class action certification under Rule 23 of the Federal Rules of …

Private Control Over Access To Public Law: The Perplexing Federal Regulatory Use Of Private Standards, Nina A. Mendelson

Articles

To save resources and build on private expertise, federal agencies have incorporated privately drafted standards into thousands of federal regulations — but only by “reference.” These standards range widely, subsuming safety, benefits, and testing standards. An individual who seeks access to this binding law generally cannot freely read it online or in a governmental depository library, as she can the U.S. Code or the Code of Federal Regulations. Instead, she generally must pay a significant fee to the drafting organization, or else she must travel to Washington, D.C., to the Office of the Federal Register’s reading room. This law, under …

Responding To Agency Avoidance Of Oira, Nina A. Mendelson, Jonathan B. Wiener

Articles

This Article proceeds as follows: Part I provides a background of the system of presidential oversight of regulation through OIRA review. Part II analyzes: (1) the incentives for agencies to cooperate with or avoid OIRA, (2) a broad array of agency avoidance tactics, and (3) corresponding response options (especially in a repeat-player relationship). Part III argues that response options to agency avoidance should not be unquestioningly pursued or rejected. Instead, they should be evaluated using many of the same principles OIRA employs in reviewing agency regulation, including a systematic consideration of the benefits and costs of particular response actions and …

Alj Support Systems: Staff Attorneys And Decision Writers, Russell L. Weaver

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Midnight Rules: A Reform Agenda, Jack M. Beermann

Michigan Journal of Environmental & Administrative Law

There is a documented increase in the volume of regulatory activity during the last ninety days of presidential administrations when the President is a lame duck, having either been defeated in a bid for re-election or being at the end of the second term in office. This includes an increase in the number of final rules issued as compared to other periods. The phenomenon of late-term regulatory activity has been called “midnight regulation,” based on a comparison to the Cinderella story in which the magic wears off at the stroke of midnight. This Article looks closely at one species of …

Toward Genuine Tribal Consultation In The 21st Century, Colette Routel, Jeffrey Holth

University of Michigan Journal of Law Reform

The federal government's duty to consult with Indian tribes has been the subject of numerous executive orders and directives from past and current U.S. Presidents, which have, in turn, resulted in the proliferation of agency-specific consultation policies. However, there is still no agreement regarding the fundamental components of the consultation duty. When does the consultation duty arise? And what does it require of the federal government? The answers to these questions lie in the realization that the tribal consultation duty arises from the common law trust responsibility to Indian tribes, which compels the United States to protect tribal sovereignty and …

The President's Enforcement Power, Kate Andrias

Articles

Enforcement of law is at the core of the President’s constitutional duty to “take Care” that the laws are faithfully executed, and it is a primary mechanism for effecting national regulatory policy. Yet questions about how presidents oversee agency enforcement activity have received surprisingly little scholarly attention. This Article provides a positive account of the President’s role in administrative enforcement, explores why presidential enforcement has taken the shape it has, and examines the bounds of the President’s enforcement power. It demonstrates that presidential involvement in agency enforcement, though extensive, has been ad hoc, crisis-driven, and frequently opaque. The Article thus …

Toward A Sustainable Future: An Environmental Agenda For The Second Term Of The Obama Administration, David M. Uhlmann

Other Publications

Much was at stake in the Presidential election of 2012, which was marked by heated debate over the trajectory of the economy, the expiration of the Bush tax cuts, and the fat of the President's health care plan. The candidates disagreed about nearly every issue from foreign policy and the war on terror to a woman's right to choose and same-sex marriage. Lost amid the din and never mentioned in the Presidential debates or most of the campaign speeches was another divisive topic: how our environmental laws and policies should address global climate change and chart a sustainable future for …

The Institutions Of Antitrust Law: How Structure Shapes Substance, William E. Kovacic

Michigan Law Review

Daniel Crane's The Institutional Structure of Antitrust Enforcement ("Institutional Structure") may do for antitrust law what Essence of Decision did for public administration. Unlike most literature on antitrust law, this superb volume does not address pressing issues of substantive analysis (e.g., when can dominant firms offer loyalty discounts?). Instead, Institutional Structure studies the design and operation of the institutions of U.S. antitrust enforcement. Professor Crane skillfully advances a basic and powerful proposition: to master analytical principles without deep knowledge of the policy implementation mechanism is dangerously incomplete preparation for understanding the U.S. antitrust system, or any body of competition law. …

Inside Agency Preemption, Catherine M. Sharkey

Michigan Law Review

A subtle shift has taken place in the mechanics of preemption, the doctrine that determines when federal law displaces state law. In the past, Congress was the leading actor, and courts and commentators focused almost exclusively on the precise wording of its statutory directives as a clue to its intent to displace state law. Federal agencies were, if not ignored, certainly no more than supporting players. But the twenty-first century has witnessed a role reversal. Federal agencies now play the dominant role in statutory interpretation. The U.S. Supreme Court has recognized the ascendancy of federal agencies in preemption disputes-an ascendancy …

Should Mass Comments Count?, Nina A. Mendelson

Articles

I am grateful to the Michigan Journal of Environmental & Administrative Law for the opportunity to reply to “Rulemaking vs. Democracy: Judging and Nudging Public Participation That Counts,” a terrific article by Professor Cynthia Farina, Mary Newhart, and Josiah Heidt of the Cornell eRulemaking Institute (“CeRI”). Farina, Newhart, and Heidt’s continuing commitment to structuring public engagement in e-rulemaking, both through scholarship and CeRI’s Regulation Room project, is one of the most hopeful signs for the future of that process. In their Article, the authors are concerned with agency treatment of large volumes of public comments in rulemaking, an increasingly common …

What The Return Of The Administrative Conference Of The United States Means For Administrative Law, Paul R. Verkuil

Michigan Journal of Environmental & Administrative Law

Administrative law, writ large, is about the way agencies behave, and how other institutions and the public react to that behavior. By promulgating rules, adjudicating cases and claims, enforcing statutes, providing guidance, collaborating with interest groups, exercising discretion, and so forth, agencies manage and implement the business of government.1 They do this under the auspices of the Executive Branch, but the other branches assert authority over the agencies as well. Congress does so by legislating, budgeting, and overseeing, while the courts do so by interpreting statutes and requiring rational behavior from agencies. These important and essential activities fill many law …

Midnight Rulemaking And Congress, Nina A. Mendelson

Book Chapters

This chapter focuses on Congress, our most democratic federal institution. Congress is generally responsible for defining the authorities possessed by the administrative state, and congressional oversight is key to holding agencies accountable for their actions. Midnight rulemaking also has the potential to increase congressional engagement. Two commentators have recently argued that relative inattention from Congress can facilitate midnight rulemaking, because Congress may meet less frequently during the lame duck period and there is no “repeat player” relationship between the outgoing president and the Congress. To the contrary, however, Congress retains considerable formal power to respond to and override presidential decisions, …

The Case For Abolishing Centralized White House Regulatory Review , Rena Steinzor

Michigan Journal of Environmental & Administrative Law

A series of catastrophic regulatory failures have focused attention on the weakened condition of regulatory agencies assigned to protect public health, worker and consumer safety, and the environment. The destructive convergence of funding shortfalls, political attacks, and outmoded legal authority have set the stage for ineffective enforcement, unsupervised industry self-regulation, and a slew of devastating and preventable catastrophes. From the Deepwater Horizon spill in the Gulf of Mexico to the worst mining disaster in forty years at the Big Branch mine in West Virginia, the signs of regulatory dysfunction abound. Many stakeholders expected that President Barack Obama would recognize and …