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Brief Of Administrative Law Scholars As Amici Curiae In Opposition To Petitioners' Request For Reversal, Jeffrey Lubbers

Amicus Briefs

Amici curiae are administrative law scholars from universities around the United States.

They are: • William D. Araiza, Professor of Law and Dean of Brooklyn Law School; • Blake Emerson, Professor of Law at UCLA School of Law; • Jeffrey Lubbers, Professor of Practice in Administrative Law at American University Washington College of Law; • Todd Phillips, Assistant Professor of Business Law at Georgia State University J. Mack Robinson College of Business; and • Beau Baumann, Doctoral candidate at Yale Law School.

Amici have a strong interest in how the Court’s decision will affect the field of administrative law and …

Grid Governance In The Energy-Trilemma Era: Remedying The Democracy Deficit, Daniel E. Walters, Andrew N. Kleit

Faculty Scholarship

Transforming the electric power grid is central to any viable scenario for addressing global climate change, but the process and politics of this transformation are complex. The desire to transform the grid creates an “energy trilemma” involving often conflicting desires for reliability, cost, and decarbonization; and, at least in the short run, it is difficult to avoid making tradeoffs between these different goals. It is somewhat shocking, then, that many crucial decisions about electric power service in the United States are made not by consumers or their utilities, nor by state public utilities commissions or federal regulators. Instead, for much …

Standards And The Law, Cary Coglianese

All Faculty Scholarship

The world of standards and the world of laws are often seen as separate, but they are more closely intertwined than many professionals working with laws or standards realize. Although standards are typically considered to be voluntary and non-binding, they can intersect with and affect the law in numerous ways. They can serve as benchmarks for determine liability in tort or contract. They can facilitate domestic and international transactions. They can prompt negotiations over the licensing of patents. They can govern the development of forensic evidence admissible in criminal courts. And standards can even become binding law themselves when they …

Ctr. For Biological Diversity V. United States Fish & Wildlife Serv., Ali Stapleton

Public Land & Resources Law Review

The Ninth Circuit Court of Appeals affirmed the District Court of Arizona’s decision to deny a proposed mining plan becuase the operations exceeded the boundaries of a valid mining claim. The issue the court addressed is whether a permanent occupancy of waste rock and tailings on land, absent the discovery of valuable minerals, is a reasonable use related to mining activities. The Ninth Circuit decision effectively prevented mining companies from amending the 1872 Mining Law on the administrative record. Motions for a rehearing and a rehearing en banc were denied.

Solving The Congressional Review Act’S Conundrum, Cary Coglianese

All Faculty Scholarship

Congress routinely enacts substantive statutes that require federal agencies to adopt regulations. When agencies issue regulations under these statutes, their rules are then subject to potential disapproval by Congress under a process outlined in a separate procedural statute known as the Congressional Review Act (CRA). If Congress passes a CRA disapproval resolution, this voids the disapproved regulation and triggers a provision in the CRA that prohibits the agency from adopting any subsequent regulation that is “substantially the same” as the disapproved one. But a CRA disapproval resolution does nothing to eliminate the agency’s obligation under the substantive statute to put …

Optimizing Cybersecurity Risk In Medical Cyber-Physical Devices, Christopher S. Yoo, Bethany Lee

All Faculty Scholarship

Medical devices are increasingly connected, both to cyber networks and to sensors collecting data from physical stimuli. These cyber-physical systems pose a new host of deadly security risks that traditional notions of cybersecurity struggle to take into account. Previously, we could predict how algorithms would function as they drew on defined inputs. But cyber-physical systems draw on unbounded inputs from the real world. Moreover, with wide networks of cyber-physical medical devices, a single cybersecurity breach could pose lethal dangers to masses of patients.

The U.S. Food and Drug Administration (FDA) is tasked with regulating medical devices to ensure safety and …

Forward: New Supreme Court Cases: Duquesne Law Faculty Explains, Wilson Huhn

Law Faculty Publications

On September 30, 2022, several members of the faculty of the Thomas R. Kline School of Law of Duquesne University presented a Continuing Legal Education program, New Supreme Court Cases: Duquesne Law Faculty Explains, reviewing these developments. Duquesne Law Review graciously invited the faculty panel to contribute their analysis of these cases from the Supreme Court's 2021- 2022 term for inclusion in this symposium issue of the Law Review.

If We Build It, Will They Legislate? Empirically Testing The Potential Of The Nondelegation Doctrine To Curb Congressional "Abdication", Daniel E. Walters, Elliott Ash

Faculty Scholarship

A widely held view for why the Supreme Court would be right to revive the nondelegation doctrine is that Congress has perverse incentives to abdicate its legislative role and evade accountability through the use of delegations, either expressly delineated or implied through statutory imprecision, and that enforcement of the nondelegation doctrine would correct for those incentives. We call this the Field of Dreams Theory—if we build the nondelegation doctrine, Congress will legislate. Unlike originalist arguments for the revival of the nondelegation doctrine, this theory has widespread appeal and is instrumental to the Court’s project of gaining popular acceptance of a …

Offshore Wind Energy Or Domestic Seafood? How The Department Of The Interior Can Facilitate Both Through Self-Binding Procedures, Adele Irwin

St. John's Law Review

(Excerpt)

The United States has many identities, including that of a coastal nation. With the largest Exclusive Economic Zone (“EEZ”) in the world, the United States has jurisdiction over more human activity in the ocean than any other country. Like people in most coastal nations, Americans are drawn to the ocean. Almost forty percent of the population lives in coastal counties that constitute less than ten percent of the nation’s land mass, and 58.3 million jobs and more than $9.5 trillion of gross domestic product are attributable to ocean resources annually. These figures have increased over time.

The diverse industries …

Constitutional Equality And Executive Action: A Comparative Perspective To The Comparator Problem, Kenny Chng

Research Collection Yong Pung How School Of Law

A general right to equality is a common feature of written constitutions around the world. Interesting questions arise when one seeks to apply such rights to discrete executive acts. The subject of such acts has necessarily been singled out from a multitude of possibilities for the purposes of the act. To determine whether a differentiation has occurred such that like cases have not been treated alike, to what or whom should this subject be compared? The question of how one selects the proper comparator becomes especially significant when one notes that whether the equal protection guarantee is triggered at all …

Re-Examining Judicial Review Of Delegated Legislation, Wei Yao, Kenny Chng

Research Collection Yong Pung How School Of Law

The usage of delegated legislation as a means of governance deserves significant attention, in view of the enormous impact that it is capable of having on the lives of citizens. While reforms to the process of parliamentary scrutiny are an important means of minimising the inappropriate usage of delegated legislation, this paper explores the possibility of drawing more fruitfully upon judicial review as an additional control mechanism. It undertakes a theoretical analysis of what makes delegated legislation distinct from primary legislation and other types of executive action for the purposes of judicial review, with a view towards identifying the proper …

Comrades Or Foes: Did The Chinese Break The Law Or New Ground Ground For The First Amendment, Artem M. Joukov

West Virginia Law Review

Prior to exiting the White House, President Trump placed a variety of restrictions on Chinese-owned social media applications, TikTok and WeChat, threatening to greatly curtail their influence in the United States. While couching his actions in the context of national security, the former president engaged in viewpoint discrimination in plain violation of the First Amendment to the United States Constitution. The court rulings in favor of TikTok and WeChat were encouraging and should stem the tide of future government regulations of social media platforms. This article discusses how the decisions fit into the greater context of First Amendment jurisprudence and …

Lessons Of The Plague Years, Barry Sullivan

Faculty Publications & Other Works

The COVID-19 pandemic has challenged governments of every description across the globe, and it surely would have tested the mettle of any American administration. But the pandemic appeared in the United States at a particularly inopportune time. January 2020 marked the beginning of a presidential election year in a deeply polarized country. President Donald Trump was a controversial figure, beginning the fourth year of a highly idiosyncratic administration. He was both a candidate for re-election and the subject of an ongoing impeachment proceeding. In these circumstances, the pandemic quickly became politicized. President Trump's response to the COVID-19 pandemic has often …

Responding To The New Major Questions Doctrine, Christopher J. Walker

Articles

The new major questions doctrine has been a focal point in administrative law scholarship and litigation over the past year. One overarching theme is that the doctrine is a deregulatory judicial power grab from both the executive and legislative branches. It limits the president’s ability to pursue a major policy agenda through regulation. And in the current era of political polarization, Congress is unlikely to have the capacity to pass legislation to provide the judicially required clear authorization for agencies to regulate major questions. Especially considering the various “vetogates” imposed by Senate and House rules, it is fair to conclude …

Antipolitics And The Administrative State, Cary Coglianese, Daniel Walters

All Faculty Scholarship

The modern administrative state plays a vital role in governing society and the economy, but the role that politics should play in administrators’ decisions remains contested. The various regulatory and social service agencies that make up the administrative state are staffed with experts who are commonly thought to be charged with making only technocratic judgments outside the pressures of ordinary politics. In this article, we consider what it might mean for the administrative state to be antipolitical. We identify two conceptions of an antipolitical administrative state. The first of these—antipolitics as antidiscretion—holds that, in a democracy, value judgments should only …

Food And Drug Regulation: Statutory And Regulatory Supplement (2023), Adam I. Muchmore

Journal Articles

This Statutory and Regulatory Supplement is intended for use with its companion casebook, Food and Drug Regulation: A Statutory Approach (2021). This is not a traditional statutory supplement. Instead, it contains selected, aggressively edited provisions of the Federal Food, Drug and Cosmetic Act (FFDCA), related statutes, and the Code of Federal Regulations. The Supplement includes all provisions assigned as reading in the casebook, as well as a few additional provisions that some professors may wish to cover. The excerpts are designed to be teachable rather than

Antipolitics And The Administrative State, Cary Coglianese, Daniel E. Walters

Faculty Scholarship

The modern administrative state plays a vital role in governing society and the economy, but the role that politics should play in administrators’ decisions remains contested. The various regulatory and social service agencies that make up the administrative state are staffed with experts who are commonly thought to be charged with making only technocratic judgments outside the pressures of ordinary politics. In this article, we consider what it might mean for the administrative state to be antipolitical. We identify two conceptions of an antipolitical administrative state. The first of these—antipolitics as antidiscretion—holds that, in a democracy, value judgments should only …

Affirmatively Resisting, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

This Article argues that administrative processes, in particular rulemaking’s notice-and-comment requirement, enable local institutions to fight back against federal deregulatory efforts. Federalism all the way down means that state and local officials can dissent from within when challenging federal action. Drawing upon the ways in which localities, states, public housing authorities, and fair housing nonprofits resisted the Trump Administration’s efforts to roll back federal fair housing enforcement, this Article shows how uncooperative federalism works in practice.

Despite the fact that the 1968 Fair Housing Act requires that the federal government affirmatively further fair housing (AFFH), the requirement was largely ignored …

To Find The Best Future System Of Agency Adjudication We Should Return To The Past, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

Professor Pierce wrote this essay for inclusion in a symposium on the future of agency adjudication:

In 1946, Congress and the Supreme Court unanimously embraced a method of conducting agency adjudications. We abandoned that method gradually through a variety of steps that we have taken in the ensuing years. We should return to the original model for conducting agency adjudications.

In section one, I describe and evaluate the method of agency adjudication that Congress adopted in the Administrative Procedure Act of 1946 after years of study and debate. In section two, I describe and criticize the changes that we have …

Brief Of Amici Curiae Administrative Law Scholars In Support Of Petitioner In Sec V. Jarkesy, Ronald M. Levin, Alan B. Morrison, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This is an amicus brief that several scholars have filed in the Supreme Court in SEC v. Jarkesy. The brief argues that (1) the double-for-cause removal requirement of Free Enterprise Fund v. PCAOB should not apply to ALJs at the SEC; and (2) the Seventh Amendment does not apply to administrative adjudication at the SEC.

Situating Structural Challenges To Agency Authority Within The Framework Of The Finality Principle, Harold J. Krent

Indiana Law Journal

No abstract provided.

Major Questions Impede Major Progress--Rebuking The Major Questions Doctrine & West Virginia V. Epa In Minnesota, Michael Warkel

Mitchell Hamline Law Review

No abstract provided.

U.S. Department Of Justice Executive Branch Engagement On Litigating The Administrative Procedure Act, Aram Gavoor, Steven A. Pratt

GW Law Faculty Publications & Other Works

The Administrative Procedure Act is a broadly worded statute that has benefitted from caselaw to fill many of its gaps, ambiguities, and inconsistencies. But the case method directs judicial attention to slivers of APA inquiry that are required to resolve cases in as-applied challenges to rules and adjudications. There is another method of APA interpretation that has never been deployed in the statute’s 77-year life—that of intentional collaboration between the executive branch and the judiciary. Acting on their litigation and case management authorities as well as their unique power to persuade the judiciary on questions of administrative procedure, the Attorney …

Congress's Anti-Removal Power, Christopher J. Walker, Aaron Nielson

Articles

Statutory restrictions on presidential removal of agency leadership enable agencies to act independently from the White House. Yet since 2020, the U.S. Supreme Court has held two times that such restrictions are unconstitutional precisely because they prevent the President from controlling policymaking within the executive branch. Recognizing that a supermajority of the Justices now appears to reject or at least limit the principle from Humphrey’s Executor that Congress may prevent the President from removing agency officials based on policy disagreement, scholars increasingly predict that the Court will soon further weaken agency independence if not jettison it altogether.

This Article challenges …

The Coming Copyright Judge Crisis, Saurabh Vishnubhakat, Dave Fagundes

Articles

Commentary about the Supreme Court's 2021 decision in United States v. Arthrex, Inc. has focused on the nexus between patent and administrative law. But this overlooks the decision's seismic and as-yet unappreciated implication for copyright law: Arthrex renders the Copyright Royalty Board ("CRB") unconstitutional. The CRB has suffered constitutional challenge since its 2004 inception, but these were seemingly resolved in 2011 when the D.C. Circuit held that the CRB's composition did not offend the Appointments Clause as long as Copyright Royalty Judges ("CRJs") were removable atwill. But when the Court invalidated the selection process for administrative patent judges on a …

Mutually Intelligible Principles?, Andrew J. Ziaja

Pace Law Review

Are the nondelegation, major questions, and political question doctrines mutually intelligible? This article asks whether there is more than superficial resemblance between the nondelegation, major questions, and political question concepts in Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825), an early nondelegation case that has become focal in recent nondelegation and major questions scholarship and jurisprudence. I argue that the nondelegation and political question doctrines do interact conceptually in Wayman, though not as current proponents of the nondelegation doctrine on the Supreme Court seem to understand it. The major questions doctrine by contrast conscripts the nondelegation …

Executive Capture Of Agency Decisionmaking, Allison M. Whelan

Vanderbilt Law Review

The scientific credibility of the administrative state is under siege in the United States, risking distressful public health harms and even deaths. This Article addresses one component of this attack-—executive interference in agency scientific decisionmaking. It offers a new conceptual framework, “internalagency capture,” and policy prescription for addressing excessive overreach and interference by the executive branch in the scientific decisionmaking of federal agencies. The Article’s critiques and analysis toggle a timeline that reflects recent history and that urges forward-thinking approaches to respond to executive overreach in agency scientific decisionmaking. Taking the Trump Administration and other presidencies as test cases, it …

A Proposed Sec Cyber Data Disclosure Advisory Commission, Lawrence J. Trautman, Neal Newman

Faculty Scholarship

Constant cyber threats result in: intellectual property loss; data disruption; ransomware attacks; theft of valuable company intellectual property and sensitive customer information. During March 2022, The Securities and Exchange Commission (SEC) issued a proposed rule addressing Cybersecurity Risk Management, Strategy, Governance, and Incident Disclosure, which requires: 1. Current reporting about material cybersecurity incidents; 2. Periodic disclosures about a registrant’s policies and procedures to identify and manage cybersecurity risks; 3. Management’s role in implementing cybersecurity policies and procedures; 4. Board of directors’ cybersecurity expertise, if any, and its oversight of cybersecurity risk; 5. Registrants to provide updates about previously reported cybersecurity …

Solving The Congressional Review Act’S Conundrum, Cary Coglianese

All Faculty Scholarship

Congress routinely enacts statutes that require federal agencies to adopt specific regulations. When Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, for example, it mandated that the Securities and Exchange Commission (SEC) adopt an anti-corruption regulation requiring energy companies to disclose payments they make to foreign governments. Although the Dodd-Frank Act specifically required the SEC to adopt this disclosure requirement, the agency’s eventual regulation was also, like other administrative rules, subject to disapproval by Congress under a process outlined in a separate statute known as the Congressional Review Act (CRA).

After the SEC issued its …

Bring On The Chicken And Hot Oil: Reviving The Nondelegation Doctrine For Congressional Delegations To The President, Loren Jacobson

St. John's Law Review

(Excerpt)

The so-called “nondelegation doctrine” posits that Congress may not transfer its legislative power to another branch of government, and yet Congress delegates its authority routinely not only to the President, but to a whole host of other entities it has created and that are located in the executive branch, including executive branch agencies, independent agencies, commissions, and sometimes even private parties. Recognizing that “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives,” the Supreme Court of the United States …