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What Congress's Repeal Efforts Can Teach Us About Regulatory Reform, Cary Coglianese, Gabriel Scheffler
What Congress's Repeal Efforts Can Teach Us About Regulatory Reform, Cary Coglianese, Gabriel Scheffler
All Faculty Scholarship
Major legislative actions during the early part of the 115th Congress have undermined the central argument for regulatory reform measures such as the REINS Act, a bill that would require congressional approval of all new major regulations. Proponents of the REINS Act argue that it would make the federal regulatory system more democratic by shifting responsibility for regulatory decisions away from unelected bureaucrats and toward the people’s representatives in Congress. But separate legislative actions in the opening of the 115th Congress only call this argument into question. Congress’s most significant initiatives during this period — its derailed attempts to repeal …
Restoring Chevron's Domain, Jonathan Adler
Restoring Chevron's Domain, Jonathan Adler
Faculty Publications
For some three decades, Chevron USA v. Natural Resources Defense Council has stood at the center of administrative law. Today, however, there are doubts about the doctrine’s continued vitality, and perhaps even its ultimate desirability. This brief article, based upon remarks delivered at Missouri Law Review symposium, suggests the scope of Chevron’s domain should be determined by its doctrinal grounding. Specifically, insofar as the Court’s subsequent application and elucidation of Chevron have indicated that the doctrine is predicated on a theory of delegation, courts should only provide such deference when the relevant power has been delegated by Congress. Correspondingly, …
Chevron's Interstitial Steps, Cary Coglianese
Chevron's Interstitial Steps, Cary Coglianese
All Faculty Scholarship
The Chevron doctrine’s apparent simplicity has long captivated judges, lawyers, and scholars. According to the standard formulation, Chevron involves just two straightforward steps: (1) Is a statute clear? (2) If not, is the agency’s interpretation of the statute reasonable? Despite the influence of this two-step framework, Chevron has come under fire in recent years. Some critics bemoan what they perceive as the Supreme Court’s incoherent application of the Chevron framework over time. Others argue that Chevron’s second step, which calls for courts to defer to reasonable agency interpretations of ambiguous statutory provisions, amounts to an abdication of judicial responsibility. …
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 …