Law Commons^™

Chevron Step Two's Domain, Kent H. Barnett, Christopher J. Walker

Scholarly Works

An increasing number of judges, policymakers, and scholars have advocated eliminating or narrowing Chevron deference—a two-step inquiry under which courts defer to federal agencies’ reasonable interpretations of ambiguous statutes the agencies administer. Much of the debate centers on either Chevron’s domain (i.e., when Chevron should apply at all) or how courts ascertain statutory ambiguity at Chevron’s first step. Largely lost in this debate on constraining agency discretion is the role of Chevron’s second step: whether the agency’s resolution of a statutory ambiguity is reasonable. Drawing on the most comprehensive study of Chevron in the circuit courts, this Essay explores how …

The Commenting Power: Agency Accountability Through Public Participation, Donald J. Kochan

Donald J. Kochan

Chevron In The Circuit Courts, Kent Barnett, Christopher J. Walker

Michigan Law Review

This Article presents findings from the most comprehensive empirical study to date on how the federal courts of appeals have applied Chevrondeference— the doctrine under which courts defer to a federal agency’s reasonable interpretation of an ambiguous statute that it administers. Based on 1,558 agency interpretations the circuit courts reviewed from 2003 through 2013 (where they cited Chevron), we found that the circuit courts overall upheld 71% of interpretations and applied Chevrondeference 77% of the time. But there was nearly a twenty-five-percentage-point difference in agency-win rates when the circuit courts applied Chevrondeference than when they did …

Center For Biological Diversity V. Jewell, Lowell J. Chandler

Public Land & Resources Law Review

The ESA protects threatened or endangered species, and species likely to become threatened or endangered within the foreseeable future, throughout all or a significant portion of their range. In Center for Biological Diversity v. Jewell, the United States District Court for the District of Arizona overturned a Fish and Wildlife Service policy defining the significant portion of range language in the ESA. The policy interpretation limited ESA protections to apply only when a species faced risk of extinction throughout its entire range. The court deemed this policy impermissible because it effectively rendered the significant portion of range language meaningless. …

Oversight Of Oversight: A Proposal For More Effective Foia Reform, Aram A. Gavoor, Daniel Miktus

Catholic University Law Review

One of the main mechanisms by which the public can gather information about government activity is through the Freedom of Information Act (FOIA). This Article suggests that FOIA contains inconsistencies that lead to a less transparent government. Gaps and ambiguities in its language that invite and require federal agency interpretation, are at odds with FOIA’s de novo standard of review. This Article suggests that FOIA’s public policy goals would be better served if Congress takes decisive action to clarify FOIA’s language and fill in such ambiguities and gaps.

Internal Administrative Law, Gillian E. Metzger, Kevin M. Stack

Michigan Law Review

For years, administrative law has been identified as the external review of agency action, primarily by courts. Following in the footsteps of pioneering administrative law scholars, a growing body of recent scholarship has begun to attend to the role of internal norms and structures in controlling agency action. This Article offers a conceptual and historical account of these internal forces as internal administrative law. Internal administrative law consists of the internal directives, guidance, and organizational forms through which agencies structure the discretion of their employees and presidents control the workings of the executive branch. It is the critical means for …

Remedial Restraint In Administrative Law, Nicholas Bagley

Articles

When a court determines that an agency action violates the Administrative Procedure Act, the conventional remedy is to invalidate the action and remand to the agency. Only rarely do the courts entertain the possibility of holding agency errors harmless. The courts’ strict approach to error holds some appeal: Better a hard rule that encourages procedural fastidiousness than a remedial standard that might tempt agencies to cut corners. But the benefits of this rule-bound approach are more elusive, and the costs much larger, than is commonly assumed. Across a wide range of cases, the reflexive invalidation of agency action appears wildly …

Pre-Enforcement Litigation Needed For Taxing Procedures, Stephanie Mcmahon

Faculty Articles and Other Publications

Courts have opened tax guidance to procedural attack. Consequently, taxpayers who are found to owe tax may challenge the validity of the guidance implementing the tax if the procedure used by the Treasury Department in adopting the guidance failed to comply with the Administrative Procedure Act, in particular, with notice-and-comment. This increased willingness to consider tax guidance's procedural defects offers little to most taxpayers unless they are also given a better means to raise procedural challenges. Under current law and in most circumstances, generally, taxpayers can bring a challenge only after they have been found to owe taxes in an …

Sovereign Immunity - The State Department’S Decision To Recognize And Allow The Claim Of Sovereign Immunity Is Binding Upon The Courts And Is Not Subject To Review Under The Administrative Procedure Act, Robin B. Gray Jr., George P. Shingler

Georgia Journal of International & Comparative Law

No abstract provided.

Against Administrative Judges, Kent H. Barnett

Scholarly Works

The single largest cadre of federal adjudicators goes largely ignored by scholars, policymakers, courts, and even litigating parties. These Administrative Judges or “AJs,” often confused with well-known federal Administrative Law Judges or “ALJs,” operate by the thousands in numerous federal agencies. Yet unlike ALJs, the significantly more numerous AJs preside over less formal hearings and have no significant statutory protections to preserve their impartiality. The national press has recently called attention to the alleged unfairness of certain ALJ proceedings, and regulated parties have successfully enjoined agencies’ use of ALJs. While fixes are necessary for ALJ adjudication, any solution that ignores …

Thin Rationality Review, Jacob Gersen, Adrian Vermeule

Michigan Law Review

Under the Administrative Procedure Act, courts review and set aside agency action that is “arbitrary [and] capricious.” In a common formulation of rationality review, courts must either take a “hard look” at the rationality of agency decisionmaking, or at least ensure that agencies themselves have taken a hard look. We will propose a much less demanding and intrusive interpretation of rationality review—a thin version. Under a robust range of conditions, rational agencies have good reason to decide in a manner that is inaccurate, nonrational, or arbitrary. Although this claim is seemingly paradoxical or internally inconsistent, it simply rests on an …

Waging The War Against Unpaid Labor: A Call To Revoke Fact Sheet #71 In Light Of Recent Unpaid Internship Litigation, Rachel P. Willer

University of Richmond Law Review

Part I of this comment provides an overview of prevailing agency and judicial interpretations of unpaid internships. Part II describes recent internship litigation and the trend towards courts abandoning the Wage and Hour Division's six-factor test in favor of a more expansive primary beneficiary test. Part III suggests that Fact Sheet #71 is an outdated model that is inapplicable to contemporary internships. The Wage and Hour Division's six-factor test lacks the "force of law" and should not warrant un- due judicial deference. Alternatively, the primary beneficiary test, articulated in the Second Circuit's holding in Glatt v. Fox Searchlight Pictures, Inc." …

Waging The War Against Unpaid Labor: A Call To Revoke Fact Sheet #71 In Light Of Recent Unpaid Internship Litigation, Rachel P. Willer

Law Student Publications

Part I of this comment provides an overview of prevailing agency and judicial interpretations of unpaid internships. Part II describes recent internship litigation and the trend towards courts abandoning the Wage and Hour Division's six-factor test in favor of a more expansive primary beneficiary test. Part III suggests that Fact Sheet #71 is an outdated model that is inapplicable to contemporary internships. The Wage and Hour Division's six-factor test lacks the "force of law" and should not warrant undue judicial deference. Alternatively, the primary beneficiary test, articulated in the Second Circuit's holding in Glatt v. Fox Searchlight Pictures, Inc. …

Anglers Conservation Network V. Pritzker, Lindsay Ward

Public Land & Resources Law Review

After the Mid-Atlantic Fishery Management Council declined to further investigate an amendment that would add two species of fish to a management plan, the appellants brought suit stating that federal agencies failed to properly manage river herring and shad in the Atlantic Ocean. Appellants asserted this inaction triggering judicial review under the Magnuson-Stevens Act and the Administrative Procedure Act. The court refused to find the National Marine Fisheries Services subject to judicial review, holding that the Council was not a government agency and that not amending the act did not constitute final agency action.

The Perfect Process Is The Enemy Of The Good Tax: Tax's Exceptional Regulatory Process, Stephanie Mcmahon

Faculty Articles and Other Publications

Many courts and academics critique existing tax exceptionalism or the ability of the federal income tax to be created, applied, or interpreted differently from other laws. Critics have successfully complained that the Treasury Department, and the IRS as a bureau of the Department, issues guidance implementing the Internal Revenue Code using different processes from those required by the Administrative Procedure Act (APA). At the same time, courts are increasing the level of deference given to this guidance to conform to that given other agencies. This article responds to these critics by urging they re-focus their attention on the objectives of …

Blacklining Editorial Privilege, Justin Hurwitz

Michigan Telecommunications & Technology Law Review

Over the past year, FCC Commissioner Mike O’Rielly has drawn valuable attention to various Commission procedures in need of reform. Of these procedures perhaps the most perplexing is that of “editorial privileges” – a process whereby Commission staff is granted permission to continue editing Commission Orders subsequent to their adoption, such that the text of the Order voted on by the Commission is not necessarily the same as that ultimately published in the Federal Register or otherwise released to the public. This procedure is longstanding – predating institutional memory; yet it is also entirely unprecedented in the canon of administrative …

Chapter 11 Shapeshifters, Lindsey Simon

Scholarly Works

Logic and equity would seem to demand that when administrative agencies are creditors to a bankrupt debtor, they should have the same status as other creditors. But a creditor agency retains its regulatory authority over the debtor, permitting it to continue with agency business such as conducting enforcement proceedings and awarding licenses. As a result, though bankruptcy law and policy both strongly support equal distribution of the estate, administrative agencies have been able to circumvent these goals through the use of “shapeshifting” behaviors. This Article evaluates two dangerous shapeshifting scenarios:

(1) where the agency avoids the limitations of creditor status …

Binding The Enforcers: The Administrative Law Struggle Behind Pres. Obama’S Immigration Actions, Michael Kagan

Scholarly Works

President Obama’s ambitious use of executive discretion in immigration – especially the DACA and DAPA programs – should be understood in context of a struggle within the executive branch between the President and frontline enforcement officers in the Department of Homeland Security who have actively resisted his policy agenda. The so far successful litigation by 26 states to partially halt these programs has focused on this struggle within the executive branch, rather than on the stalemate between the President and Congress over legislative immigration reform. In preliminary rulings, the federal district court and the Court of Appeals have interpreted ambiguous …

Black-Box Immigration Federalism, David S. Rubenstein

Michigan Law Review

In Immigration Outside the Law, Hiroshi Motomura confronts the three hardest questions in immigration today: what to do about our undocumented population, who should decide, and by what legal process. Motomura’s treatment is characteristically visionary, analytically rich, and eminently fair to competing views. The book’s intellectual arc begins with its title: “Immigration Outside the Law.” As the narrative unfolds, however, Motomura explains that undocumented immigrants are “Americans in waiting,” with moral and legal claims to societal integration.

The Supreme Assimilation Of Patent Law, Peter Lee

Michigan Law Review

Although tensions between universality and exceptionalism apply throughout law, they are particularly pronounced in patent law, a field that deals with highly technical subject matter. This Article explores these tensions by investigating an underappreciated descriptive theory of Supreme Court patent jurisprudence. Significantly extending previous scholarship, it argues that the Court’s recent decisions reflect a project of eliminating “patent exceptionalism” and assimilating patent doctrine to general legal principles (or, more precisely, to what the Court frames as general legal principles). Among other motivations, this trend responds to rather exceptional patent doctrine emanating from the Federal Circuit in areas as varied as …

Litigation: Time To Revisit Chevron Deference?, Jack M. Beerman, Charles J. Cooper, Thomas W. Merrill, Amy J. Wildermuth, Don R. Willett

Faculty Scholarship

This panel discussion took place on Thursday, November 13, 2014 at the Mayflower Hotel in Washington, D.C., prior to the passing of Justice Antonin Scalia. Justice Scalia's impact on the development of administrative law in the United States is unparalleled.

Environmental Integrity Project V. Mccarthy, Lindsay Ward

Public Land & Resources Law Review

In addition to stocking grocery stores and restaurants with beef, chicken and milk, CAFOs generate another product—manure. The EPA’s decision to withdraw a proposed rule compelling CAFOs to provide information to aid the agency in regulating their discharge of pollutants into the waters of the United States was upheld by the United States District Court for the District of Columbia. The court concluded that the EPA’s decision was “adequately explained” and “coherent,” supported by the administrative record, and did not conflict with existing law.

Inside Regulatory Interpretation: A Research Note, Christopher J. Walker

Michigan Law Review First Impressions

We now live in a regulatory world, where the bulk of federal lawmaking takes place at the bureaucratic level. Gone are the days when statutes and common law predominated. Instead, federal agencies—through rulemaking, adjudication, and other regulatory action—have arguably become the primary lawmakers, with Congress delegating to its bureaucratic agents vast swaths of lawmaking power, the President attempting to exercise some control over this massive regulatory apparatus, and courts struggling to constrain agency lawmaking within statutory and constitutional bounds. This story is not new. Over two decades ago, for instance, Professor Lawson lamented the rise of the administrative state and …

Underground Environmental Regulations: Regulations Imposed As Mitigation Measures Under Ceqa Violate The California Administrative Procedure Act, Jonathan Wood

Jonathan Wood

What happens when an agency adopts a regulation under the California Environmental Quality Act as mitigation for a program’s environmental impact, without complying with the procedural requirements of the California Administrative Procedure Act? According to a recent California Court of Appeal decision – Center for Biological Diversity v. Department of Fish and Wildlife – these mitigation measures, which this article refers to as underground environmental regulations, are invalid. This article defends that interpretation and addresses its consequences for agencies and the regulated public. Although these additional procedural protections benefit regulated parties in a variety of ways, they can also burden …

High Country Conservation Advocates V. United States Forest Service, 52 F. Supp. 3d 1174 (D. Colo. 2014), Kathryn S. Ore

Public Land & Resources Law Review

High Country Conservation Advocates v. United States Forest Service concerns the United States Forest Service’s and the Bureau of Land Management’s authorizations of on-the-ground mining exploration activities in the Sunset Roadless Area of western Colorado. The United States District Court for the District of Colorado’s holding has far-reaching consequences for federal agencies’ analysis and disclosure of impacts on the climate under the National Environmental Policy Act (“NEPA”). In addition to bolstering the Plaintiffs’ recent successes at establishing legal standing to challenge federal agencies’ disclosures and analyses of impacts on the climate under NEPA, High Country is the first case to …

The Nlrb, The Courts, The Administrative Procedures Act, And Chevron: Now And Then, Theodore J. St. Antoine

Articles

Decisions of the National Labor Relations Board (NLRB), like those of other administrative agencies, are subject to review by the federal judiciary. Standards of review have evolved over time. The Administrative Procedure Act of 1946 provides that administrative decisions must be in accord with law and required procedure, not arbitrary or capricious, not contrary to constitutional rights, within an agency's statutory jurisdiction, and supported by substantial evidence. In practice, more attention is paid to two Supreme Court decisions, Skidmore (1944) and Chevron (1984). For many years Chevron seemed the definitive test. A court must follow a clear intent of Congress, …

Means And Ends In City Of Arlington V. Fcc: Ignoring The Lawyer's Craft To Reshape The Scope Of Chevron Deference, Michael P. Healy

Law Faculty Scholarly Articles

In last year's term, the United States Supreme Court considered the question of the scope of Chevron deference in City of Arlington v. FCC. This article discusses how the decision is an example of the work of an activist Court. The case should have been resolved by a straightforward determination under the analysis of United States v. Mead that Chevron deference simply did not apply to the Federal Communications Commission's (FCC) legal determination. The Court ignored this restrained approach to the case and instead addressed the question the Justices desired to decide: the reach of Chevron deference. The article …

Codifying Chevmore, Kent H. Barnett

Scholarly Works

This Article considers the significance and promise of Congress’s unprecedented codification of the well-known Chevron and Skidmore judicial-deference doctrines (to which I refer collectively as “Chevmore”). Congress did so in the Dodd-Frank Act by instructing courts to apply the Skidmore deference factors when reviewing certain agency-preemption decisions and by referring to Chevron throughout.

This codification is meaningful because it informs the delegation theory that undergirds Chevmore (i.e., that Congress intends to delegate interpretive primacy over statutory interpretation to agencies under Chevron or courts under Skidmore). Scholars and at least three Supreme Court Justices have decried the judicial inquiry into congressional …

The Dean Rusk Award 1984-1985: The 1984 "Country Of Origin" Regulations For Textile Imports: Illegal Administrative Action Under Domestic And International Law?, David Stepp

Georgia Journal of International & Comparative Law

No abstract provided.

The Deeply Flawed Inaugural College Football Playoff: A Call For Structural Changes To Protect Against Undue Commercialization, To Ensure Transparency, And To Systematize Democratic Due Process, Matthew M. Heekin, Bruce W. Burton

Matthew M. Heekin

This article contends that the new College Football Playoff system (CFP)—as formulated and administered in 2014—contains a series of serious flaws. The new CFP system needlessly incorporates an anti-democratic structure, lacks in the transparency required for sustainability in a democratic society, and endangers the longstanding tradition of the student-athlete in American college athletics. This article offers several detailed suggestions—in part modeled on the Administrative Procedures Act—to correct these flaws and move towards an improved CFP system.

Employing the benchmarks of television viewership and advertising revenues, some have declared the inaugural 2014 College Football Playoff a success. From the purely commercial …