Administrative Law Commons^™

Mexico's Legal Revolution: An Appraisal Of Its Recent Constitutional Changes, 1988-1995, Jorge A. Vargas

Georgia Journal of International & Comparative Law

No abstract provided.

Toward A Federal Constitutional Right To Employment, R. George Wright

Seattle University Law Review

This Article outlines an argument for a federal constitutional right to employment. The Article begins by examining the harms and costs of involuntary long-term unemployment. It then discusses the historical contributions to our understanding of the value of work, before drawing on several well-established jurisprudential distinctions to explain why, and to justify initial optimism regarding a constitutional employment right.

Climate Balkanization: Dormant Commerce And The Limits Of State Energy Policy, Jonathan H. Adler

Faculty Publications

Through the imposition of mandates on what sorts of energy may be produced or sold, state regulatory efforts have imposed burdens on interstate energy markets. In some cases, these burdens are explicit, as when states have privileged in-state energy sources at the expense of out-of-state producers or sellers. In other cases, these burdens are the inevitable consequence of state efforts to reduce the environmental impacts of energy consumed within the state. Such restrictions, and their associated burdens on interstate commerce, raise serious constitutional questions. Under the so-called "Dormant Commerce Clause," state regulations that discriminate against out-of-state actors are presumptively unconstitutional, …

Equality And The European Union, Elizabeth F. Defeis

Georgia Journal of International & Comparative Law

No abstract provided.

The Jurisprudence Of Discrimination As Opposed To Simple Inequality In The International Civil Service, Brian D. Patterson

Georgia Journal of International & Comparative Law

No abstract provided.

Sela V. Yehieli, Uzi Vogelman, Esther Hayut, Neal Hendel

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Facts:    An appeal of the decision of the Haifa Administrative Affairs Court, dismissing the petition of the Appellants and holding that the court should not intervene in the decision of the Kfar Vradim local council according to which a women’s mikve (ritual bath) would not be constructed in the town in the near future.

Held:     As a rule, a local council enjoys broad discretion …

Qualified Immunity And Statutory Interpretation, Ilan Wurman

Seattle University Law Review

Before the 1989 case of Graham v. Connor, excessive force cases were pursued under either state law or the insuperable “shocks the conscience” test of the Fourteenth Amendment. Only after Graham did excessive force cases—now under the Fourth Amendment and 42 U.S.C. § 1983—inundate the federal courts, which had by then granted far-reaching immunities to officers for their constitutional torts. As a result of federal qualified immunity doctrine, which many states have adopted for themselves, excessive force cases rarely get to trial, plaintiffs often cannot recover, and courts struggle to find principled distinctions from one qualified immunity case to the …

Due Process Rights Before Eu Agencies: The Rights Of Defense, David E. Shipley

Georgia Journal of International & Comparative Law

No abstract provided.

Dr. Carb Or: How I Learned To Stop Worrying About The Feds And Love States’ Rights, Dan Strong

Washington and Lee Journal of Energy, Climate, and the Environment

Climate change is one of the largest environmental problems the world is currently facing. At the forefront of the climate change issue is the problem of carbon emissions. Environmentalists were hopeful that a national regulatory structure would be created with the enactment of the Clean Air Act in the 1970s. Since its enactment, however, it is clear the Clean Air Act was not the solution to the national carbon emissions problem environmentalists were hoping for. With the federal government failing to act, states have taken it upon themselves to regulate carbon emissions. California, with its enactment of the California Low …

The Prohibition Of Moonshine: A Consumer Protection Analysis Of Raw Milk In Interstate Commerce, Whitney R. Morgan

West Virginia Law Review

No abstract provided.

Unitary Innovations And Political Accountability, Edward H. Stiglitz

Cornell Law Faculty Publications

An important trend in administrative and constitutional law is to attempt to concentrate ever-greater control over the administrative state in the hands of the President. As the Supreme Court recently reminded us in Free Enterprise Fund v. Public Company Accounting Oversight Board, one foundation for this doctrinal trend is a fear that diffusing power diffuses accountability. Here, I study whether institutional innovations resulting from such judicial decisions support this functionalist constitutional value of political accountability, emphasizing under-appreciated complications arising out of interbranch relations. For most of the Article, I conduct an indepth empirical case study of the legislative veto, one …

California Year In Review: 2013 Special Education Alj Decisions, Ruth Colker

Journal of the National Association of Administrative Law Judiciary

This article reviews 74 special education cases decided by California ALJs between January 1, 2013 and December 11, 2013. The author concludes that the ALJs provided stingy relief even when students prevailed, there was often unsuccessful litigation on behalf of a student following the termination of a consent decree or court order, many of the cases reflected negative attitudes towards the mothers of the student, and school districts often preferred more restrictive placements than the parent/student. Not surprisingly, students faced very unfavorable outcomes when they were not represented by a lawyer.

Qualified Immunity: Discretionary Function, Extraordinary Circumstances, And Other Nuances, Karen M. Blum

Touro Law Review

No abstract provided.

Resolving The Alj Quandary, Kent Barnett

Journal of the National Association of Administrative Law Judiciary

Three competing constitutional and practical concerns surround federal administrative law judges (“ALJs”), who preside over all formal adjudications within the executive branch. First, if ALJs are “inferior Officers” (not mere employees), as five current Supreme Court Justices have suggested, the current method of selecting many ALJs likely violates the Appointments Clause. Second, a recent U.S. Supreme Court decision reserved the question whether the statutory protections that prevent ALJs from being fired at will impermissibly impinge upon the President’s supervisory power under Article II. Third, these same protections from removal may, on the other hand, be too limited to satisfy impartiality …

Final Decision Authority And The Central Panel Alj, Larry J. Craddock

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Reasoned Explanation And Irs Adjudication, Steve R. Johnson

Scholarly Publications

Under the Administrative Procedure Act (APA), an administrative action can be invalidated as arbitrary and capricious if the agency fails to sufficiently explain the reasons for its choices. This principle applies to agency adjudication as well as to agency rulemaking. How does this principle apply to IRS adjudications? Examining five paradigms of IRS decisionmaking, this Article first establishes that the IRS does engage in APA–style adjudication. The Article then examines tax-specific explanation requirements and asks whether a more robust explanation duty patterned on the APA should be imposed on IRS determinations. Based on a variety of legal and prudential considerations, …

The Transformative Twelfth Amendment, Joshua D. Hawley

Faculty Publications

This paper argues that the Twelfth Amendment represents far more than a mechanical adjustment of the electoral college. Rather, it is the constitutional text that gives us the political presidency that we know today. The Twelfth Amendment worked a major structural change in the relationship between the legislative and executive branches and for that reason bears directly on the debate over the unitary executive and the meaning of “executive power.” Specifically, presidential removal power is best justified not by the original Article II, but by the constitutional structure the Twelfth Amendment created. And the scope and definition of executive power …

A Pragmatic Republic, If You Can Keep It, William R. Sherman

Michigan Law Review

These things we know to be true: Our modern administrative state is a leviathan unimaginable by the Founders. It stands on thin constitutional ice, on cracks between the executive, legislative, and judicial branches. It burdens and entangles state and local governments in schemes that threaten federalism. And it presents an irresolvable dilemma regarding democratic accountability and political independence. We know these things to be true because these precepts animate some of the most significant cases and public law scholarship of our time. Underlying our examination of administrative agencies is an assumption that the problems they present would have been bizarre …

The Puzzling Presumption Of Reviewability, Nicholas Bagley

Articles

The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …

The Puzzling Presumption Of Reviewability, Nicholas Bagley

Articles

The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …

Axelrod V. State, Asher Grunis, Miriam Naor, Elyakim Rubinstein

Translated Opinions

The petition urges the Court to compel the Knesset to legislate the matter of marriages between those who cannot (as in cases of intermarriage) or wish not to marry under religious law and are therefore excluded from marrying in Israel. Holding that the Court cannot order the Legislature to legislate outside of correcting a constitutional flaw in existing statutes, President Grunis and Deputy President Naor declined to intervene. In his concurrence, Justice Rubinstein finds that as current marriage laws exclude large portions of the population, the State cannot continue to ignore this reality and violate citizens' right to marry. He …

In Defense Of Idea Due Process, Mark Weber

College of Law Faculty

Due Process hearing rights under the Individuals with Disabilities Education Act are under attack. A major professional group and several academic commentators charge that the hearings system advantages middle class parents, that it is expensive, that it is futile, and that it is unmanageable. Some critics would abandon individual rights to a hearing and review in favor of bureaucratic enforcement or administrative mechanisms that do not include the right to an individual hearing before a neutral decision maker. This Article defends the right to a due process hearing. It contends that some criticisms of hearing rights are simply erroneous, and …

A Step By Step Look At Uarg V. Epa: A New Layer Of Greenhouse Gas Regulation, Kevin O. Leske

Faculty Scholarship

No abstract provided.

A Primer On Hobby Lobby: For-Profit Corporate Entities' Challenge To The Hhs Mandate, Free Exercise Rights, Rfra's Scope, And The Nondelegation Doctrine, Terri R. Day, Leticia M. Diaz, Danielle Weatherby

Faculty Scholarship

No abstract provided.

Defeating A Wolf Clad As A Wolf: Formalism And Functionalism In Separation-Of-Powers Suits Against The Consumer Financial Protection Bureau, Lee A. Deneen

Georgia Law Review

In 2010, the Court decided Free Enterprise Fund, engaging in a substantially formalist analysis of the President's removal power. That same year, Congress authorized creation of the Consumer Financial Protection Bureau, a federal agency with significant regulatory and enforcement power over the consumer finance industry. Within three years of that legislation, two lawsuits have challenged the CFPB's structure. This Note evaluates the arguments of the CFPB's opponents against the backdrop of Free Enterprise Fund and the Roberts Court's other formalist decisions. Although one might expect complaints against the CFPB to be lodged solely in formalist terms, the CFPB's opponents have …

In Search Of Skidmore, Peter L. Strauss

Faculty Scholarship

Ever since 1827, the U.S. Supreme Court has repeatedly observed that when a court is interpreting a statute that falls within the authority of an administrative agency, the court in reaching its own judgment about the statute's meaning should give substantial weight to the agency's view. Repeated again and again over the years in varying formulations, this proposition found its apotheosis in Skidmore v. Swift & Co., a unanimous opinion authored by Justice Jackson in 1944. His opinion took the proposition to be so obvious that no citation was required. Justice Jackson's typically incisive and memorable formulation stuck. It …

The Uneasy Case Against Auer And Seminole Rock, Conor Clarke

Scholarship@WashULaw

The deference regimes of Auer and Seminole Rock give an agency's interpretation of its own regulation "controlling weight unless [the interpretation] is plainly erroneous or inconsistent with the regulation." This doctrine has long been criticized for giving agencies an incentive to promulgate vague regulations. In this essay I critically review these objections to Auer and Seminole Rock against the backdrop of plausible alternative regimes and recent developments in the lower courts.

Agency Enforcement Of Spending Clause Statutes: A Defense Of The Funding Cut-Off, Eloise Pasachoff

Georgetown Law Faculty Publications and Other Works

This article contends that federal agencies ought more frequently to use the threat of cutting off funds to state and local grantees that are not adequately complying with the terms of a grant statute. Scholars tend to offer four arguments to explain—and often to justify—agencies’ longstanding reluctance to engage in funding cut-offs: first, that funding cut-offs will hurt the grant program’s beneficiaries and so will undermine the agency’s ultimate goals; second, that federalism concerns counsel against federal agencies’ taking funds away from state and local grantees; third, that agencies are neither designed nor motivated to pursue funding cut-offs; and fourth, …

The Conflict Of Visions In Nfib V. Sebelius, Jonathan H. Adler

Faculty Publications

In 2010, few anticipated the fate of healthcare reform would rest with the Supreme Court. Yet National Federation of Independent Business v. Sebelius [hereinafter NFIB] emerged as a watershed case that could remake the constitutional landscape. NFIB presented a conflict between two constitutional visions of federal power and the role of the courts in policing such limits--an unconstrained vision, under which limits on federal power are enforced primarily through the political process, and a constrained vision, under which constitutional limits on federal power are enforced by the courts. The contrasting views of the constitutionality of the individual mandate and …

The Administrative Origins Of Modern Civil Liberties Law, Jeremy K. Kessler

Faculty Scholarship

This Article offers a new explanation for the puzzling origin of modern civil liberties law. Legal scholars have long sought to explain how Progressive lawyers and intellectuals skeptical of individual rights and committed to a strong, activist state came to advocate for robust First Amendment protections after World War I. Most attempts to solve this puzzle focus on the executive branch's suppression of dissent during World War I and the Red Scare. Once Progressives realized that a powerful administrative state risked stifling debate and deliberation within civil society, the story goes, they turned to civil liberties law in order to …