Administrative Law Commons^™

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 …

On The Ftc’S Authority To Promulgate Trade Regulation Rules, Lev Menand, Tim Wu

Faculty Scholarship

On April 23, 2024, the FTC finalized a trade regulation rule prohibiting employers from enforcing non-compete agreements against workers. In response, business groups sued and Daniel Crane, a law professor at the University of Michigan, published a piece in Notice and Comment that reported on the views of 17 anonymous online volunteers regarding the fate of the rule in the courts. All but one of the volunteers, drawn from law professor listservs, predicted the law would be struck down, either based on the “Major Questions Doctrine” (MQD) or for lack of authority to promulgate substantive rules governing unfair methods of …

The Making Of Presidential Administration, Ashraf Ahmed, Lev Menand, Noah Rosenblum

Faculty Scholarship

Today, the idea that the President possesses at least some constitutional authority to direct administrative action is accepted by the courts, Congress, and the legal academy. But it was not always so. For most of American history — indeed until relatively recently — Presidents derived their authority over the administrative state largely from statute. Any role for the White House in agency rulemaking or adjudication had to be legally specified. Scholars mostly agree about when this change occurred. But the dominant shared narrative — exemplified by then-Professor Elena Kagan’s seminal article Presidential Administration — is Whig history. It offers a …

Rays Of Hope For The Administrative State, Peter L. Strauss

Faculty Scholarship

The assault on Chevron has not yet been resolved, but it is next to impossible to believe that the sensible Justices of the Court will go any further than to reaffirm that deciding questions of the scope of agency authority is exclusively for judicial resolution (though perhaps with Skidmore-like attention to the views of the agency, so much more familiar with its statutes as a whole). This was the position clearly taken by the Court in 1940, in United States v. American Trucking Ass’ns., and to go beyond it into decision, rather than review, of agency judgments would …

The Administrative State, Financial Regulation, And The Case For Commissions, Kathryn Judge, Dan Awrey

Faculty Scholarship

Administrative law is under attack, with the Supreme Court reviving, expanding, and creating doctrines that limit the authority and autonomy wielded by regulatory agencies. This anti-administrative turn is particularly alarming for financial regulation, which already faces enormous challenges stemming from the dynamism of modern finance, its growing complexity, and fundamental contestability. Yet that does not mean that defending the current regime is the optimal response. The complexity and dynamism of modern finance also undercut the efficacy of established administrative procedures. And the panoply of financial regulators with unclear and overlapping jurisdictional bounds only adds to the challenge. Both these procedural …

Administering A Democratic Industrial Policy, Joel Michaels, Amy Kapczynski

Center for Law and the Economy

In Washington today, we are witnessing what many call the “return of industrial policy.” Some argue that a new political economic paradigm is emerging, departing from the neoliberal order of the last several decades. High-stakes questions about how to administer industrial policy have followed, for good reason: industrial policy necessarily involves a great deal of administrative discretion. Yet we have no adequate literature discussing how that discretion should be deployed. Administrative law scholarship has largely ignored the distinctive tools of industrial policy, such as grantmaking, lending, government contracts and ownership stakes. These tools require flexibility and discretion, and often cannot …

Capital Regulation As Climate Policy, Joel Michaels

Center for Law and the Economy

Federal banking regulators are grappling with how to confront the threats posed by climate change. There are increasingly loud calls for regulators to adjust the “risk-weights” used to calculate banks’ minimum capital requirements based on how exposed their counterparties are to climate-related risks. This action could reduce risks to the financial system, and potentially make it less desirable for banks to lend to carbon- intensive activities. But other scholars have challenged the legality and administrability of this proposal. They argue that it is difficult to gather reliable empirical data about climate-related risks, and that any risk- weights that are not …

Concluding Thoughts, Morgan Ricks, Ganesh Sitaraman, Shelley Welton, Lev Menand

Faculty Scholarship

Writing a book review, especially when that book weighs in at 1,200 pages, is an act of generosity. We are so very grateful to all the contributors for their deep engagement with Networks, Platforms, and Utilities: Law and Policy.

Appropriations, The Budget, And Public Debt Transparency: The Fiscal Panorama, Gillian E. Metzger, Anna Gelpern, Alissa Ardito Ashcroft, Erika Lunder, Karla Vasquez-Suarez

Faculty Scholarship

Appropriations, budget, and public debt law lurk in the recesses of public law. Every now and again, in a blaze of glory and spilled ink, they emerge under the guise of a constitutional issue. Should a constitutional question arise, usually separation of powers, amid a political stalemate, then an extended shutdown or debt ceiling drama steal the spotlight. After a last-minute compromise or, rarely, a judicial ruling, the green eyeshades return. Money, finance, public spending – whether mandatory or discretionary – exert little charm over lawyers, who went to law school to avoid arithmetic. But the federal government pays for …

The Major Questions Doctrine: Right Diagnosis, Wrong Remedy, Thomas W. Merrill

Faculty Scholarship

The Supreme Court’s “major questions” doctrine has been attacked as an attempt to revive the nondelegation doctrine. The better view is that this statutory interpretation responds to perceived failings of the Chevron doctrine, which has governed court-agency relations since 1984. This article criticizes the major question doctrine and proposes modifications to the Chevron doctrine that would partially correct its failings while preserving the traditional interpretive role of courts.

Antitrust Rulemaking: The Ftc’S Delegation Deficit, Thomas W. Merrill

Faculty Scholarship

The Federal Trade Commission’s (FTC’s) recent assertion of authority to engage in legislative rulemaking in antitrust matters can be addressed in terms of three frameworks: the major questions doctrine, the Chevron doctrine, and as a matter of ordinary statutory interpretation. The article argues that as a matter of ordinary statutory interpretation the FTC has no such authority. This can be seen by considering the structure and history of the Act and is confirmed by the 1975 Federal Trade Commission Improvements Act. Given that the result follows from ordinary statutory interpretation, it is unnecessary for courts to consider the other two …

Chevron'S Ghost Rides Again, Thomas W. Merrill

Faculty Scholarship

Professor Gary Lawson has offered a remarkable account of the fate of the Chevron doctrine during a recent year in the Supreme Court, from August 2021 to June 2022. When one examines lower court decisions, petitions seeking review of those decisions, briefs filed by the parties, and transcripts of oral arguments, Chevron made frequent appearances during the year. But when one reads the published opinions of the Court, one finds virtually no reference to Chevron. Based on the published opinions of the Court, it was as if the Chevron decision did not exist.

The status of Chevron as a …

Introduction To The Symposium On Networks, Platforms, And Utilities: Law And Policy, Morgan Ricks, Ganesh Sitaraman, Shelley Welton, Lev Menand

Faculty Scholarship

We are grateful to the Yale Journal on Regulation for hosting this symposium on our new law school casebook, Networks, Platforms, and Utilities: Law and Policy, and to the fantastic lineup of scholars who will be contributing to the symposium over the next couple of weeks.

In this brief symposium introduction, we seek to answer five questions about the book. What is it about? Why did we write it? How does its subject matter relate to other areas of legal study? Why is the time ripe for it? And, how does it differ from previous “regulated industries” textbooks?

Administrative Harms, Philip A. Hamburger

Faculty Scholarship

Administrative power imposes serious wounds on the United States, its Constitution, and its citizens. Therefore, a persuasive defense of administrative power would need to respond to these harms, showing that it is constitutional and otherwise desirable, notwithstanding its many costs. If the administrative state is defensible, it will be necessary to wrestle with all of the damage it incurs.

Our Unruly Administrative State, Philip A. Hamburger

Faculty Scholarship

One of the perennial academic rituals of administrative “law” is to explain its compatibility with the rule of law. As surely as seasons pass, academics muster their formidable intellectual resources to reassure us, and themselves, that in pursuing administrative power, they have not abandoned the rule of law.

A more immediate justificatory project might be to explain the constitutionality of the administrative state. But notwithstanding valiant efforts, its constitutionality remains in doubt. So a fallback measure of its legitimacy seems valuable.

From this perspective, even if the administrative state is not quite constitutional, it can enjoy legitimacy under traditional common …

New Democracy: Finding Hope In The Past And Heavy Lifting For The Future, Kate Andrias

Faculty Scholarship

Bill Novak has written a remarkable book that debunks the myth that the American state was weak and unconcerned with providing for social welfare until it was transformed by the extraordinary leadership of President Franklin Delano Roosevelt. He shows with compelling detail that the New Deal was not a magical or anomalous moment, but rather came about because of legal, institutional, socioeconomic, and democratic “heavy lifting” that occurred over the course of the preceding seventy years.

A Scholarly Error And A Larger Truth, Philip A. Hamburger

Faculty Scholarship

Can Congress delegate its legislative power? The question has stimulated much recent scholarship, including Professor Nicholas Parrillo’s detailed study of the 1798 federal tax act. According to his article, the statute delegated binding rulemaking power. My recent SSRN draft Nondelegation Blues questions Parrillo’s conclusion. But now in this blog, he suggests that my article misreads his argument.

What Is The Law's Role In A Recession?, Gabriel Rauterberg, Joshua Younger

Faculty Scholarship

In March 2020, the world faced not only a public health emergency but also one of the most profound shocks to the global economy in the modern era — a shock deeper and broader than any other in eighty years. Never before had virtually all of the world’s economies suffered a contraction at the same time (Tooze, p. 5). Global output decreased by nearly 3.4% in 2020, the largest contraction since the Second World War. The United States saw the largest recorded demand shock in its history (-32.9%), and the unemployment rate peaked around 15% during 2020, higher than at …

Constitutionalism And New Democracy: Two Questions, Ashraf Ahmed

Faculty Scholarship

Bill Novak’s New Democracy, like his first book The People’s Welfare, is a characteristically learned, conceptually sophisticated, and expansive history of the American regulatory state. This time, however, instead of defending a “strong” early American state operating largely through the common law, Novak chronicles the emergence of a recognizably modern, national administrative state. His story roughly spans the aftermath of the Civil War to the election of FDR in 1932; this means, Novak tells us, that “much of the heavy lifting in terms of the creation was done before the so-called Hundred Days.” (264). Importantly all of these …

What Does Effective Government Have To Do With The Constitution?, Gillian E. Metzger

Faculty Scholarship

Nearly a million people dead and counting. More than 77 million infected, a little less than one-fifth of the total infections worldwide. The United States has had more deaths than any other country, and its COVID-19 death rate of 276 per 100,000 people is the highest among the world’s wealthiest nations. Blacks, Hispanics, and Native Americans are hospitalized and die at significantly higher rates than whites. Some bright lights exist too, one being the speedy development of vaccines and their deployment in 2021 – although there, too, both the national government and the states have sometimes stumbled. Another is legislative …

The Right To Effective Self-Government, Katharina Pistor

Faculty Scholarship

Protecting individual rights is a core feature of democratic constitutionalism. The centralization of the means of coercion gave rise to the Hobbesian dilemma, the fear that this enormous power might be abused unless it be effectively controlled. In addition to dividing power among different branches of government or sharing it between the federation and its units, constitutions have fortified individual rights with judicial review and enforcement mechanisms against the executive branch to rein in state power.

Proposing a collective right to effective self-government sits oddly with a vision that pitches free individuals against an all-powerful state. Such a right can, …

Of Presidents, Democracy, And Congress, Gillian E. Metzger

Faculty Scholarship

Put one good thing down for the Trump presidency: It inspired Peter Shane to take up the pen to detail the fallacies of unitary executive theory and other forms of aggressive presidentialism. In Democracy’s Chief Executive, Shane provides a clear and powerful account for why unitary executive theory — the claim that the president can control the entire federal bureaucracy, which Shane notes usually includes the propositions that the president can fire any subordinate executive branch officer at will and determine how any discretion delegated to the executive branch is exercised — fails. As he explains, such propositions are …

How The Administrative State Got To This Challenging Place, Peter L. Strauss

Faculty Scholarship

Written for a dispersed agrarian population using hand tools in a local economy, our Constitution now controls an American government orders of magnitude larger that has had to respond to profound changes in transportation, communication, technology, economy, and scientific understanding. How did our government get to this place? The agencies Congress has created to meet these changes now face profound new challenges: transition from the paper to the digital age; the increasing centralization in an opaque, political presidency of decisions that Congress has assigned to diverse, relatively expert and transparent bodies; the thickening, as well, of the political layer within …

The Uncertain Future Of Administrative Law, Jeremy K. Kessler, Charles F. Sabel

Faculty Scholarship

A volatile series of presidential transitions has only intensified the century-long conflict between progressive defenders and conservative critics of the administrative state. Yet neither side has adequately confronted the fact that the growth of uncertainty and the corresponding spread of guidance – a kind of provisional “rule” that invites its own revision – mark a break in the development of the administrative state as significant as the rise of notice-and-comment rulemaking in the 1960s and 1970s. Whereas rulemaking corrected social shortsightedness by enlisting science in the service of lawful administration, guidance acknowledges that both science and law are in need …

Re-Reading Chevron, Thomas W. Merrill

Faculty Scholarship

Though increasingly disfavored by the Supreme Court, Chevron remains central to administrative law doctrine. This Article suggests a way for the Court to reformulate the Chevron doctrine without overruling the Chevron decision. Through careful attention to the language of Chevron itself, the Court can honor the decision’s underlying value of harnessing comparative institutional advantage in judicial review, while setting aside a highly selective reading that unduly narrows judicial review. This re-reading would put the Chevron doctrine – and with it, an entire branch of administrative law – on firmer footing.

Power Transitions In A Troubled Democracy, Peter L. Strauss, Gillian E. Metzger

Faculty Scholarship

Written as our contribution to a festschrift for the noted Italian administrative law scholar Marco D’Alberti, this essay addresses transition between Presidents Trump and Biden, in the context of political power transitions in the United States more generally. Although the Trump-Biden transition was marked by extraordinary behaviors and events, we thought even the transition’s mundane elements might prove interesting to those for whom transitions occur in a parliamentary context. There, succession can happen quickly once an election’s results are known, and happens with the new political government immediately formed and in office. The layer of a new administration’s political leadership …

The Federal Reserve And The 2020 Economic And Financial Crisis, Lev Menand

Faculty Scholarship

This Article provides a comprehensive legal analysis of the Federal Reserve's response to the 2020 economic and financial crisis. First, it examines the sixteen ad hoc lending facilities that the Fed established to fight the crisis and sorts them into two categories. Six advance the Fed's monetary mission and were designed to halt a run on financial institutions. Ten go beyond the Fed's traditional role and are designed to directly support financial markets and the real economy. Second, it maps these programs onto the statutory framework for money and banking. It shows that Congress's signature crisis legislation, the CARES Act, …