Law Commons^™

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 …

Grand Unified (Separation Of Powers) Theory: Examining The United States Marshals, Emile Katz

Pace Law Review

This Article examines a novel separation of powers issue that the Supreme Court has never directly addressed: the existence and practices of the United States Marshals. The United States Marshals serve an executive branch function—law enforcement—yet are often directly overseen and commanded by the judicial branch. In the United States federal government system—in which the executive and judicial branches are designed to act independently—the control the federal courts exercise over the marshals raises separation of powers concerns. Since no court has decided what test should apply when federal courts vicariously exercise executive power, this Article applies several separation of powers …

Influence By Intimidation: Business Lobbying In The Regulatory Process, Alex Acs, Cary Coglianese

All Faculty Scholarship

Interest group influence in the policy process is often assumed to occur through a mechanism of exchange, persuasion, or subsidy. Here, we explore how business groups may also exert influence by intimidating policymakers—a form of persuasion, but one based not on the provision of policy information but of political information. We develop a theory where a business firm lobbies a regulator to communicate political information about its capacity to commit to future influence-seeking activities that would sanction the regulator. The regulator assesses the credibility of this message by evaluating the firm’s commitment to lobbying. Guided by our theory, we present …

Antitrust Liability For False Advertising: A Response To Carrier & Tushnet, Susannah Gagnon, Herbert J. Hovenkamp

All Faculty Scholarship

This reply briefly considers when false advertising can give rise to antitrust liability. The biggest difference between tort and antitrust liability is that the latter requires harm to the market, which is critically dependent on actual consumer response. As a result, the biggest hurdle a private plaintiff faces in turning an act of false advertising into an antitrust offense is proof of causation – to what extent can a decline in purchase volume or other market rejection be specifically attributed to the defendant’s false claims? That requirement dooms the great majority of false advertising claims attacked as violations of the …

Vesting, Jed Handelsman Shugerman

Faculty Scholarship

"The executive Power shall be vested in a President of the United States of America." The Executive Vesting Clause is one of three originalist pillars for the unitary executive theory, the idea that the President possesses executive powers like removal without congressional limitations (that is, the powers are indefeasible). An underlying assumption is that "vest" connotes a formalist approach to separation of powers rather than a more functional system of Madisonian checks and balances. Assumptions about "vesting" for official powers are likely the result of semantic drift from property rights and ahistoric projections back from the later Marshall Court doctrine …

May The Executive Branch Forgive Student Loan Debt Without Further Congressional Action?, Colin Mark

Journal of the National Association of Administrative Law Judiciary

On April 1, 2021, the Biden administration announced that Secretary of Education Michael Cardona will consider whether the President has legal authority to forgive up to $50,000 per debtor in student loan debt without further Congressional action. This paper interrogates the leading arguments for and against the Biden administration’s capacity to forgive this student loan debt strictly using administrative action. This article first surveys the history of federal student loan forgiveness programs in the United States. It then considers whether statutes on the books—in particular, the Higher Education Act of 1965 and the Federal Claims Collection Act of 1966—grant the …

Friends Of The Earth V. Haaland Case Summary, Valan Anthos

Public Land & Resources Law Review

A federal district court vacated the U.S.’s largest offshore oil and gas lease sale ever because of an inadequate NEPA analysis. The court found that the BOEM’s decision to exclude estimations of reductions in foreign oil consumption if no lease took place was arbitrary and capricious.

Administrative Apparition: Resurrecting The Modern Administrative State’S Legitimacy Crisis With Agency Law Analysis, Tabitha Kempf

Catholic University Law Review

There is an enduring discord among academic and political pundits over the state of modern American government, with much focus on the ever-expanding host of federal agencies and their increasing regulatory, investigative, enforcement, and adjudicatory authority. The growing conglomerate of federal agencies, often unfavorably regarded as the “administrative state,” has invited decades of debate over the validity and proper scope of this current mode of government. Advocates for and against the administrative state are numerous, with most making traditional constitutional arguments to justify or delegitimize the current establishment. Others make philosophical, moral, or practical arguments in support or opposition. Though …

Moving Toward Personalized Law, Cary Coglianese

All Faculty Scholarship

Rules operate as a tool of governance by making generalizations, thereby cutting down on government officials’ need to make individual determinations. But because they are generalizations, rules can result in inefficient or perverse outcomes due to their over- and under-inclusiveness. With the aid of advances in machine-learning algorithms, however, it is becoming increasingly possible to imagine governments shifting away from a predominant reliance on general rules and instead moving toward increased reliance on precise individual determinations—or on “personalized law,” to use the term Omri Ben-Shahar and Ariel Porat use in the title of their 2021 book. Among the various technological, …

The Politics Of Deference, Gregory A. Elinson, Jonathan S. Gould

Vanderbilt Law Review

Like so much else in our politics, the administrative state is fiercely contested. Conservatives decry its legitimacy and seek to limit its power; liberals defend its necessity and legality. Debates have increasingly centered on the doctrine of Chevron deference, under which courts defer to agencies’ reasonable interpretations of ambiguous statutory language. Given both sides’ increasingly entrenched positions, it is easy to think that conservatives have always warned of the dangers of deference, while liberals have always defended its virtues. Not so. This Article tells the political history of deference for the first time, using previously untapped primary sources including presidential …

Revisiting Remedies And The Legality-Merits Distinction In Singapore Administrative Law: Cbb V Law Society Of Singapore [2021] Sgca 6, Kenny Chng, Wen Qi Andrea Soon

Research Collection Yong Pung How School Of Law

It is a general principle of administrative law that the courts will not compel a decision-maker to perform a public duty in a particular manner by way of a mandatory order. Notably, in CBB v Law Society of Singapore [2021] SGCA 6, the Singapore Court of Appeal accepted that an exception could be made to this general principle where there was only one reasonable way to perform the public duty in question. Beyond the decision’s obvious ramifications for the law relating to public law remedies in Singapore, this note argues that the Court of Appeal’s reasoning bears significant implications for …

Stress Testing Governance, Rory Van Loo

Faculty Scholarship

In their efforts to guard against the world’s greatest threats, administrative agencies and businesses have in recent years increasingly used stress tests. Stress tests simulate doomsday scenarios to ensure that the organization is prepared to respond. For example, agencies role-played a deadly pandemic spreading from China to the United States the year before COVID-19, acted out responses to a hypothetical hurricane striking New Orleans months before Hurricane Katrina devastated the city, and required banks to model their ability to withstand a recession prior to the economic downturn of 2020. But too often these exercises have failed to significantly improve readiness …

Decoding Nondelegation After Gundy: What The Experience In State Courts Tells Us About What To Expect When We're Expecting, Daniel E. Walters

Faculty Scholarship

The nondelegation doctrine theoretically limits Congress’s ability to delegate legislative powers to the executive agencies that make up the modern administrative state. Yet, in practice, the U.S. Supreme Court has, since the New Deal, shied away from enforcing any limits on congressional delegation. That may change in the near future. In Gundy v. United States, the Court narrowly upheld a delegation, and a dissent signaled deep doubts about the Court’s longstanding “intelligible principle” standard and offered a new framework to replace it. Subsequent events strongly suggest that the Court is poised to move in the direction contemplated by the dissent …

A Weaponized Process: The Deterioration Of Asylum Administration Under Trump, David C. Portillo Jr.

Journal of the National Association of Administrative Law Judiciary

Under the Trump Administration, a series of Attorney General decisions increased Executive Branch scrutiny over decisions of the Board of Immigration Appeals (BIA). This scrutiny serves to advance an anti-immigration policy at the cost of denying entry of valid asylum seekers. These decisions are due to tension between the politically directed executive power of Attorneys General and the Judicial nature of the BIA. This internal contradiction results in Attorney General decisions that are arbitrary, inconsistent, employ poor reasoning, deviate from precedent, and cause inhumane effects. The structure of asylum administration, as laid out in the Immigration and Naturalization Act and …

Introduction To The Bremer-Kovacs Collection: Historic Documents Related To The Administrative Procedure Act Of 1946 (Heinonline 2021), Emily S. Bremer, Kathryn E. Kovacs

Journal Articles

Few statutes have a legislative history as rich, varied, and sprawling as the Administrative Procedure Act of 1946 (APA). In recent years, courts and scholars have shown increased interest in understanding this history. This is no mean feat. The APA’s history spans nearly two decades, and it includes numerous failed bills, a presidential veto, and a full panoply of congressional documents. In addition, much of the most crucial documentation underlying the APA was produced outside of Congress—by the executive branch—and even outside of government—by the American Bar Association. Identifying and locating all the relevant documents is difficult. Understanding each piece …

Responding To Mass, Computer-Generated, And Malattributed Comments, Steven J. Balla, Reeve Bull, Bridget C.E. Dooling, Emily Hammond, Michael A. Livermore, Michael Herz, Beth Simone Noveck

Articles

A number of technological and political forces have transformed the once staid and insider dominated notice-and-comment process into a forum for large scale, sometimes messy, participation in regulatory decisionmaking. It is not unheard of for agencies to receive millions of comments on rulemakings; often these comments are received as part of organized mass comment campaigns. In some rulemakings, questions have been raised about whether public comments were submitted under false names, or were automatically generated by computer “bot” programs. In this Article, we examine whether and to what extent such submissions are problematic and make recommendations for how rulemaking agencies …

The Undemocratic Roots Of Agency Rulemaking, Emily S. Bremer

Journal Articles

Americans often credit—or blame—Congress for the laws and policies that govern their lives. But Congress enacts broad statutes that give federal administrative agencies the primary responsibility for making and enforcing the regulations that control American society. These administrative agencies lack the political accountability of those in public office. To address this democratic deficit, an agency seeking to adopt a new regulation must publish a notice of proposed rulemaking and provide an opportunity for the public to comment on the proposal. Heralded as “one of the greatest inventions of modern government,” the Administrative Procedure Act’s (APA) notice-and-comment rulemaking procedure is understood …

A Congressional Review Act For The Major Questions Doctrine, Christopher J. Walker

Articles

Last Term, the Supreme Court recognized a new major questions doctrine, which requires Congress to provide clear statutory authorization for an agency to regulate on a question of great economic or political significance. This new substantive canon of statutory interpretation will be invoked in court challenges to federal agency actions across the country, and it will no doubt spark considerable scholarly attention. This Essay does not wade into those doctrinal or theoretical debates. Instead, it suggests one way Congress could respond: by enacting a Congressional Review Act for the major questions doctrine. In other words, Congress could establish a fast-track …

Unreasonable Risk: The Failure To Ban Asbestos And The Future Of Toxic Substances Regulation, Rachel Rothschild

Law & Economics Working Papers

Every day, Americans are exposed to hundreds of chemicals in the air we breathe, the water we drink, and the products we use. The vast majority of these chemicals have never been tested for safety. Many have been shown to cause serious health harms, ranging from cancer to autoimmune illness to IQ loss. They also have disproportionate effects on some of the most vulnerable populations in our society, such as children, minorities, and industrial workers.

The law that is supposed to protect Americans from dangerous chemical exposures – the Toxic Substances Control Act (TSCA) – was long considered a dead …

Marketing Authorization At The Fda: Paradigms And Alternatives, Adam I. Muchmore

Journal Articles

In many critical industries, the Food and Drug Administration’s (FDA’s) marketing authorization decisions determine the range of products available in the United States. Because of the broad scope of the FDA’s marketing authorization responsibilities, the existing scholarship focuses on individual product categories, or small groups of product categories, regulated by the agency. This Article identifies how the existing literature has overlooked important connections between the FDA’s different marketing authorization programs. These connections suggest both explanations for existing programs and strategies for potential reforms.

The Article sets forth a two-level framework for analyzing the FDA’s marketing authorization role. At the first …

Food And Drug Regulation: Statutory And Regulatory Supplement (2022 ), Adam I. Muchmore

Books

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 comprehensive.

Procedural Environmental Justice, Jonathan Skinner-Thompson

Publications

Achieving environmental justice—that is, the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies—requires providing impacted communities not just the formal right, but the substantive ability, to participate as equal partners at every level of environmental decision-making. While established administrative policy purports to provide all people with so-called “meaningful involvement” in the regulatory process, the public participation process often excludes marginalized community members from exerting meaningful influence on decision-making. Especially in the environmental arena, regulatory decisions are often buried …

Delegating Climate Authorities, Mark P. Nevitt

Faculty Articles

The science is clear: the United States and the world must take dramatic action to address climate change or face irreversible, catastrophic planetary harm. Within the U.S.—the world’s largest historic emitter of greenhouse gas emissions—this will require passing new legislation or turning to existing statutes and authorities to address the climate crisis. Doing so implicates existing and prospective delegations of legislative authority to a large swath of administrative agencies. Yet congressional climate decision-making delegations to any executive branch agency must not dismiss the newly resurgent nondelegation doctrine. Described by some scholars as the “most dangerous idea in American law,” the …

Playing The Long Game: Expediting Permitting Without Compromising Protections, Jamie Pleune

Utah Law Faculty Scholarship

The Biden Administration’s efforts to expedite a transition to clean energy have prompted calls for permit reform. Clean energy relies heavily upon critical minerals and transitioning to a clean energy economy demands a global increase in mineral production. Some commentators suggest that environmental standards must be loosened in order to achieve efficiency. This premise offers short term gain in exchange for long-term pain. It also poses a false dilemma by failing to distinguish between productive and unproductive causes of delay in the permitting process. The permit process creates opportunities to eliminate, reduce, or mitigate risks. These opportunities may cause short-term …

Comments Submitted In Response To Request For Information To Inform Interagency Working Group On Mining Regulations, Laws, And Permitting, Robert B. Keiter, Jamie Pleune, Heather Tanana, Brigham Daniels, Tim Duane, Elisabeth Parker

Utah Law Faculty Scholarship

On March 31, 2022, the Department of Interior announced the formation of an interagency working group to develop recommendations for improving Federal hardrock mining regulations, laws, and permitting processes, and invited public comment to help inform the efforts of the working group. The Request for Information sought, among other things, recommendations on “opportunities to reduce time, cost, and risk of permitting without compromising strong environmental and consultation benchmarks.” Members of the Wallace Stegner Center of Land Resources and the Environment, at the S.J. Quinney College of Law, University of Utah submitted comments based on their shared expertise in mining law, …

Racial Justice And Administrative Procedure, Sophia Z. Lee

All Faculty Scholarship

This article argues that commemorating the Administrative Procedure Act (APA) should involve accounting for the role it has played in both advancing and thwarting racial justice, as well as the role racial justice advocates have played in shaping its interpretation. The APA was not designed to advance racial justice; indeed, its provisions insulated some of the mid-twentieth century's most racially pernicious policies from challenge. Yet racial justice advocates have long understood that administrative agencies could be a necessary or even uniquely receptive target for their efforts and the APA shaped those calculations. Along the way, racial justice advocates left their …