Administrative Law Commons^™

What Is To Be Done About The Radical Far-Right?, Bernard E. Harcourt

Faculty Scholarship

The far Right in America has become radical. In the process, it has outmaneuvered the progressives. In the first months of his second mandate, President Trump has mounted a revolution (or counterrevolution) against the liberal democratic state. Steve Bannon said he was Leninist and wanted to “smash the state.” President Trump has done just that. In this essay, I explore the far Right’s embrace of Lenin. I return to the Hegelian roots of Lenin’s politics to explain what he meant by “smashing the state machine.” I then argue that the Left should reclaim Lenin’s dialectics and his call, in the …

The Impact Of New York's 2026 Climate Law Retreat, Jonathan A. Binder, Vincent M. Nolette

Sabin Center for Climate Change Law

On May 26, 2026, New York State enacted significant revisions to its 2019 Climate Leadership and Community Protection Act (CLCPA). The 2026 Amendments, which include changes to the greenhouse gas (GHG) emission accounting methodology, the statewide GHG emission limits, and the requirement to adopt implementing regulations, collectively weaken the Act's ambition. New York’s retreat from state climate action after championing it for years reflects a broader national trend of de-prioritizing mitigation efforts.

The 2026 Amendments will have vast and important consequences for the implementation of the CLCPA. Numerous actions will need to be updated through rulemaking, guidance, or other administrative …

Stafford Act's Requirement To Consider Climate Change In State Hazard Mitigation Plans, Olivia N. Guarna

Sabin Center for Climate Change Law

Climate change is fueling an unprecedented number of extreme weather and climate disasters with dire costs on human life and property. States and local governments now face a responsibility to adapt to these increasing disaster risks to improve community resilience and avoid an ever-growing magnitude of loss. Congress passed the Stafford Act in 1988 to provide a means for sustained and coordinated federal aid in response to disasters. The Stafford Act includes a comprehensive non-emergency hazard mitigation program. Hazard mitigation assistance empowers states, tribes, and local governments to engage in planning and mitigation activities that improve disaster outcomes and minimize …

Some Realism About Constitutional Remedies, Thomas P. Schmidt, Gillian E. Metzger

Faculty Scholarship

The Supreme Court has wavered between two approaches to questions of executive power, which are often labeled institutional formalism and realism. Formalism treats an institution like the presidency as a “black box” to which the Constitution assigns certain powers. In Trump v. Hawaii,  for example, the Supreme Court upheld President Trump’s infamous travel ban by focusing not on the “particular President” and his past call for a “complete shutdown of Muslims entering the United States,” but rather on “the authority of the Presidency itself.” That is the language of institutional formalism.

Realism, on the other hand, peers into the “black …

The Unitary Executive And The Federal Reserve, Lev Menand

Faculty Scholarship

The U.S. Supreme Court may soon embrace an interpretation of the U.S. Constitution that would significantly expand the power of the president over federal administrators and invalidate key provisions in dozens of federal statutes. A critical question is whether this interpretation — known as the unitary executive theory (UET) — would also render unconstitutional central bank independence (CBI), an arrangement where a country’s monetary policy is formulated by a semiautonomous body of experts insulated from partisan political pressure. Several justices have suggested that it would not, and a growing scholarly literature has proposed ways for the Court to distinguish the …

Metrics Not Thresholds: How To Regulate Ai And Other Expert Methods For Use In Criminal Investigations And Proceedings, Rebecca Wexler

Faculty Scholarship

Should regulators set performance thresholds for AI tools used in the criminal legal system? This Article draws on U.S. evidence law for guidance. Its answer is ... don’t. Instead of gatekeeping with ex ante performance thresholds, regulators should require or incentivize metrics of reliability that can be clearly communicated to end-user decisionmakers.

Poor Esg: Regressive Effects Of Climate Stewardship, Zohar Goshen, Assaf Hamdani, Alex Raskolnikov

Faculty Scholarship

The rise of inequality and global warming are the two ultimate challenges of our time. After decades of congressional failure to address climate change, the private sector has stepped in and adopted a set of environmental, social, and governance (ESG) policies as a market-based solution to a public policy failure. ESG advocates hope that corporate executives would save our planet. Where Congress failed, ESG will succeed.

This Article argues that if ESG-driven climate stewardship ever achieves the scale necessary to have a real impact on global warming, it will hurt the poor. Legislative interventions to combat climate change are nearly …

The Revival Of Section 5: A Return To The Ftc’S Roots In A Time Of Democratic Crisis, Shaoul Sussman

Center for Law and the Economy

On November 10, 2022, the Federal Trade Commission (FTC or the “Commission”) issued a policy statement on the scope of unfair methods of competition under section 5 of the Federal Trade Commission Act (FTCA). This policy statement marked a significant shift, reviving a broad interpretation of the agency’s authority to police anticompetitive conduct. The antitrust defense bar reacted with alarm, arguing that the principles are overly ambiguous and lack guidance. This Essay contends that reaction is misplaced. The statement draws on a rich body of U.S. Supreme Court and circuit court precedent that the antitrust bar seems to have largely …

Agenda Control And Precedent, Thomas P. Schmidt

Faculty Scholarship

The U.S. Supreme Court now has vast control over its agenda: It has the power to pick and choose not only what cases it will hear through writs of certiorari, but also what specific legal questions within those cases it will consider. As a result, the Court never revisits a precedent unless it has made a prior, discretionary choice to put the viability of a precedent on its agenda. For that reason, the Court’s powers of agenda control play a significant and underappreciated role in maintaining the continuity of the legal order. Indeed, it is no surprise that the formal …

Performing Legality: When And Why Chinese Government Leaders Show Up In Court, Rachel E. Stern, Jieun Kim, Benjamin L. Liebman

Faculty Scholarship

Since 2015, Chinese government leaders have been required by law to appear in court when citizens sue their unit or to designate an employee to take their place. We frame this policy as a demand on leaders to “perform legality,” sacrificing their time to demonstrate how seriously the government takes legal proceedings. Drawing on an original dataset of 127,529 administrative lawsuits decided between 2015 and 2018, we investigate how often government leaders appear in Chinese courtrooms, and for which kinds of cases. Overall, leaders attended 24.72% of hearings. Contrary to the State Council’s instructions to prioritize attendance in lawsuits that …

The Law Of For Cause Removal, Jane Manners, Lev Menand

Faculty Scholarship

For the first time in American history, the Supreme Court is poised to decide what it means for the president to remove a principal officer “for cause.” The case — which arises from the attempted removal of Lisa Cook, a member of the Board of Governors of the Federal Reserve System — has major implications for central bank independence in the United States and, more broadly, for the U.S. administrative state. But given how long it has been since such offices were formally contested, courts and commentators have forgotten many aspects of the legal tradition governing “for cause” removal. In …

Selective Service And The Separation Of Powers, Jeremy K. Kessler

Faculty Scholarship

The legal history of the U.S. military draft is a case study in creative statutory interpretation. Throughout the twentieth century, this interpretive creativity tended both to expand draft registrants’ substantive and procedural rights, and to recalibrate the roles played by Congress, the courts, and various executive branch factions in the governance of tens of millions of young men. Today’s Military Selective Service Act (“MSSA”) reads much like the law that governed the land when the country last went to war with conscripts during the 1950s and 1960s. But between U.S. entry into the Korean War and its withdrawal from Vietnam, …

Trump V. Cook And The American Rule Of For-Cause Removal, Jane Manners, Lev Menand

Faculty Scholarship

Halfway through oral argument in Trump v. Cook, Justice Amy Coney Barrett asked Solicitor General John Sauer when a statute authorizing an officer’s removal should be read to require process. “Why shouldn’t we do the same thing that the Shurtleff court did,” Barrett asked, “and say that, well, as we said in Shurtleff, when a statute specifies the grounds for removal, there must be notice and a hearing given?”

In response, Sauer distinguished between statutes authorizing removal for inefficiency, neglect of duty, or malfeasance in office (INM) — which he conceded require process — and statutes using the more …

Slaughter, The Symmetry Rule, And What The Decision Of 1789 Actually Decided, Jane Manners, Lev Menand

Faculty Scholarship

During oral argument in Slaughter last month, Solicitor General John Sauer argued that there were three textual sources for an illimitable presidential removal power: the Vesting Clause, the Take Care Clause, and the Appointments Clause. Why the Appointments Clause? Because, he explained, “the power to remove flows to the power to appoint.” According to Sauer, a run of nineteenth century cases, including Ex Parte Hennen, supports this proposition.

Sauer’s contention is not new: Chief Justice Taft in Myers v. U.S. also claimed that in the First Congress, “the express recognition of the power of appointment in [Article II] enforced this …

General Rulemaking Grants And The Federal Trade Commission, Tamar Katz, Alex Lloyd George, Lev Menand, Tim Wu

Faculty Scholarship

The legal campaign against the administrative state has a new front: general rulemaking provisions. General rulemaking provisions authorize agencies, in an open-ended way, to write rules to carry out Congress’s directives. Administrative agencies have relied on such provisions for decades. But over the last several years, some litigators, scholars, and judges have advanced limiting theories that would, if applied widely, greatly reduce the ability of agencies to execute federal statutes. The leading edge of this campaign is an effort to negate the rulemaking authority of the Federal Trade Commission (FTC). The reasoning employed by the FTC’s opponents, already adopted by …

Fact Checking Oral Argument In Slaughter, Lev Menand

Faculty Scholarship

The Supreme Court heard argument on Monday in Trump v. Slaughter, a case in which the President seeks to override the power of Congress to limit, through legislation, presidential removal of federal administrators. The argument revealed some confusion about the law and history of federal offices and multiple precedents important to resolving the question. This post examines mistakes and misreadings with respect to: the design of the Federal Reserve System; the meaning of a fixed term; and the Court’s decisions in Marbury v. Madison, Ex Parte Hennen, and Parsons v. United States.

Slaughter, Parsons, And The Original Meaning Of A Term Of Years, Jane Manners, Lev Menand

Faculty Scholarship

This term the Supreme Court is hearing argument in two major cases regarding the law of federal offices. One — Trump v. Slaughter — may strip Congress of the power to place any restrictions on the President’s ability to remove administrators at will. Another — Trump v. Cook — will address how such restrictions work, assuming that the President has to follow them.

Removal: A Response To Professor Nelson, Philip A. Hamburger

Faculty Scholarship

In an essay published earlier this fall, Professor Caleb Nelson argues that, as a matter of originalism, the President does not have a constitutional power to remove executive officers. Professor Nelson is a renowned scholar, whose arguments could well influence the Supreme Court in two upcoming removal cases: Trump v. Slaughter and Trump v. Cook. It’s therefore important to evaluate whether his historical claim about removal is correct.

Bank Supervision And Article Ii, Kathryn Judge

Faculty Scholarship

The administrative state is again at a cross roads. The Supreme Court seems poised to continue its march toward trying to fit all of government neatly into one of the three constitutionally enumerated branches. An important front of this shift has been a flattening of the mechanisms through which officers of the United States may be held appropriately accountable for their actions. Waning are the days when Congress had the flexibility to create the institutions it believed were “necessary and proper” for carrying into execution important policy aims and to determine the appropriate mechanisms for accountability in conjunction with considering …

The Administrative State's Second Face, Emily R. Chertoff, Jessica Bulman-Pozen

Faculty Scholarship

We often assume that there is one administrative state, with one body of administrative law that governs it. In fact, the administrative state has two distinct faces: one turned toward regulation and benefits distribution, and one turned toward physical force and surveillance. The two faces are growing further apart under the Roberts Court, which has hemmed in the first face with decisions like Loper Bright while showing solicitude for national security and law enforcement agencies.

This Article delineates the two faces of the administrative state. It provides a descriptive account of the second face and the distinctive administrative law that …

Presidential Supremacy Over Administrative Agencies, Gary Gensler, Lev Menand

Faculty Scholarship

In the United States, the public has long benefited from the role played by administrative agencies with a degree of autonomy from the White House, each agency with distinct duties and authorities to implement the law as set out by Congress.

In its first hundred days, the second Trump administration has moved rapidly to centralise control over all administrative agencies, including so-called independent agencies, which have long operated at a greater remove from the White House than ‘executive’ agencies like the Department of State and the Department of Commerce. The administration is asserting an interpretation of the Constitution known as …

Administrative Law And The Pandemic, Gillian E. Metzger

Faculty Scholarship

American administrative law’s relationship to change is, as they say, compli­cated. On the one hand, continual evolution has been an endemic feature of American administrative law. Doctrines such as Chevron deference to agency statutory interpretations were born, grew, and declined in just the period from the 1980s to today. On the other, the United States (US) Supreme Court regularly rejects such common law development in administrative law as illegitimate and insists that federal judges must adhere to the original terms of the 1946 Administrative Procedure Act (APA) and other statutes, unless the Constitution requires otherwise. And to this day scholars …

How Artificial Intelligence Will Shape Securities Regulation, Gabriel Rauterberg

Faculty Scholarship

How will the increasing prevalence and sophistication of artificial intelligence (AI) change the doctrine and practice of securities law? My main thesis is that it will push securities regulation toward a more systems-oriented approach. This approach will replace securities law’s emphasis, in areas like manipulation, on forms of enforcement targeted at specific individuals and accompanied by punitive sanctions with a greater focus on ex ante rules designed to shape an ecology of actors and information.

Competitive Populism, Madhav Khosla

Faculty Scholarship

The preoccupation of comparative constitutional lawyers over the past decade or so has been the rise of authoritarian populism. This chapter focuses on one possible pathway that might follow our present political moment: competitive populism. This phase will involve a certain kind of institutional vacuum: the prior institutions, associated with liberal constitutional democracy, will not lend themselves to being rebooted. In reflecting on this possible future, this chapter explores the nature and form of deinstitutionalization that has occurred under authoritarian populism, and the elements that define the emerging constitutional framework. The implication here is that what will be crucial …

Ai Regulation Has Its Own Alignment Problem: The Technical And Institutional Feasibility Of Disclosure, Registration, Licensing, And Auditing, Neel Guha, Christie M. Lawrence, Lindsey A. Gailmard, Kit T. Rodolfa, Faiz Surani, Rishi Bommasani, Inioluwa Deborah Raji, Mariano-Florentino Cuéllar, Colleen Honigsberg, Percy Liang, Daniel E. Ho

Faculty Scholarship

Calls for regulating artificial intelligence (“AI”) are widespread, but there remains little consensus on both the specific harms that regulation can and should address and the appropriate regulatory actions to take. Computer scientists propose technical solutions that may be infeasible or illegal; lawyers propose regulation that may be technically impossible; and commentators propose policies that may backfire. AI regulation, in that sense, has its own alignment problem, in which proposed interventions are often misaligned with societal values.This Article assesses the alignment and technical and institutional feasibility of four dominant proposals for AI regulation in the United States: disclosure, registration, licensing, …

Constitutional And Administrative Innovation Through State Labor Law, Kate Andrias

Faculty Scholarship

This Essay explores recent efforts by worker organizations to transform labor policy in states, as well as countermobilizations by business and conservative groups. It focuses on two particularly promising efforts: the development of worker standards boards and pro-labor changes to state constitutional law. It shows why, as a matter of political economy, such reforms have been achievable at the state and local levels, but not the federal level, and explores the potential of state reforms to build greater economic and political power for working people, notwithstanding limits imposed by federal preemption doctrine. Ultimately, this Essay argues that these recent innovations …

The Demise Of Deference — And The Rise Of Delegation To Interpret?, Thomas W. Merrill

Faculty Scholarship

In the concluding days of its recently completed Term, in the midst of headline-grabbing decisions about presidential immunity, gun rights, and abortion, the Supreme Court rendered a momentous decision overruling the Chevron doctrine. The decision in Loper Bright Enterprises v. Raimondo was not a surprise. After treating the Chevron doctrine as a settled principle of administrative law for more than three decades, the Court stopped applying it in 2016. Several Justices authored individual opinions urging that it was unconstitutional, violated the Administrative Procedure Act (APA), was prone to manipulation by judges, created systematic bias in favor of the government, and …

Implementing The Inflation Reduction Act: Progress To Date And Risks From A Changing Administration, Romany M. Webb, Martin Lockman, Emma Shumway

Sabin Center for Climate Change Law

The Inflation Reduction Act of 2022 (“IRA”) is the largest investment in climate change mitigation and adaptation in American history. The IRA appropriates more than $142 billion to carry out activities designed to reduce greenhouse gas emissions and protect against the impacts of climate change. This includes up to $37 billion in appropriations for federal loans and loan guarantees, and nearly $105 billion allocated for grants, awards, and other direct spending by federal agencies. In addition, the IRA creates and expands a number of tax credit programs designed to support a broad range of climate-related activities, including investments in clean …

Do Private Actors Have Rights Under The Wto? The Motivation For And (Inadequate) Implementation Of Gatt Article X, Adeet Dobhal, Petros C. Mavroidis, Lucas Moreira Jiminez, Sunayana Sasmal, Robert Wolfe

Faculty Scholarship

General Agreement on Tariffs and Trade (GATT) Article X has been consistently overlooked in literature even though it is a unique provision in the GATT-regime: it acknowledges standing for private actors who can challenge trade-related administrative action by World Trade Organization (WTO) members. This provision is an unusual instantiation of the need to provide transparency for private actors about state policy. It is equally eccentric in seeming to provide a right for private actors to challenge governments, albeit only before domestic fora. How did the GATT end up with this provision? And are these apparent private rights meaningful in practice? …

The Hidden Monetary State, Gabriel Rauterberg, Joshua Younger

Faculty Scholarship

Money is a motley. While the state enjoys a monopoly on issuing new physical currency, a variety of instruments serve money-like roles in the financial system. The commercial banking system significantly augments the money supply through issuing deposits. Alongside it, a shadow banking system has also developed, offering a range of deposit substitutes.

This Article seeks to cast new light on the U.S. financial system by exploring how, over the course of the twentieth century, federal policymakers engaged in a series of distinct and largely uncoordinated monetary experiments. As we show through historical case studies, federal authorities designed, promoted, and …