Administrative Law Commons^™

The Case Against Prosecuting Refugees, Evan J. Criddle

Faculty Publications

Within the past several years, the U.S. Department of Justice has pledged to prosecute asylum-seekers who enter the United States outside an official port of entry without inspection. This practice has contributed to mass incarceration and family separation at the U.S.–Mexico border, and it has prevented bona fide refugees from accessing relief in immigration court. Yet, federal judges have taken refugee prosecution in stride, assuming that refugees, like other foreign migrants, are subject to the full force of American criminal justice if they skirt domestic border controls. This assumption is gravely mistaken.

This Article shows that Congress has not authorized …

Arbitrary Arbiters: Evaluating The Right To Be Informed Of Eligibility For Discretionary Relief In Removal Proceedings, Michael Jordan

William & Mary Bill of Rights Journal

No abstract provided.

A Necessary Negative: Analysis Of The Tidewater Virginia Surry-Skiffes Creek Transmission Tower Litigation, Geoffrey Robert Grau

William & Mary Environmental Law and Policy Review

No abstract provided.

Concerning Catskill: Missed Opportunity, Broken Precedent And The Plight Of American Waters, Chase Corey

William & Mary Environmental Law and Policy Review

As society progresses and the population grows, uninhibited and unregulated pollution has become a pressing dilemma for current and future generations. Whether it is plastic on the beaches, oil in the oceans, or smog in the air, modern citizens of the Earth face a daily onslaught of visible consequences from the actions of polluters. But what about the not so visible consequences? Every day there is pollution occurring at a microscopic level, yet many are unaware of its presence. This infinitesimal issue is nutrient pollution, and despite its diminutive cause, it is deeply affecting one of the world’s most vital …

The Politics Of Cost-Benefit Analysis: A Risky Bet For Environmental Law And Policy In Brazil, Julio Borges

William & Mary Environmental Law and Policy Review

Seeking to disseminate cost-benefit analysis as part of a global agenda of reforms on regulatory policy, the Organization for Economic Cooperation and Development (“OECD”) has advocated this economic tool to all its member countries. A key partner of that international organization since 2007, Brazil officially sought in 2017 to be a permanent OECD member, which means accepting orientation from that organization on policy reforms, namely regulatory policy. This Article disagrees with OECD’s recommendation because traditional cost-benefit analysis has been technically flawed and politically biased towards a deregulatory agenda. The purpose of this Article, therefore, is to analyze the potential impacts …

The Iarc Monographs Program And The Federal Advisory Committee Act--Never The Twain Shall Meet?, David B. Fischer

William & Mary Environmental Law and Policy Review

No abstract provided.

Evaluating The Effects Of Fossil Fuel Supply Projects On Greenhouse Gas Emissions And Climate Change Under Nepa, Michael Burger, Jessica Wentz

William & Mary Environmental Law and Policy Review

Despite the high certainty of our looming climate catastrophe, fossil fuel production and consumption, and the greenhouse gas emissions that result, are increasing. In the United States, fossil fuel production reached record levels in 2018, and oil and gas pipelines are being constructed at an unprecedented pace. The National Environmental Policy Act (“NEPA”) provides the legal framework for the federal government to evaluate the climate impacts of these supply projects, such as leasing public lands and approving pipelines and export terminals. Yet, while federal agencies have begun to analyze how such projects impact climate change there are major inconsistencies in …

Feeding The World: How Changes In Biotech Regulation Can Jump-Start The Second Green Revolution And Diversify The Agricultural Industry, John A. Erwin, Robert Glennon

William & Mary Environmental Law and Policy Review

As the Earth’s population climbs from 7.7 billion in 2019 to almost 10 billion by mid-century, farmers will need to increase food production by 70 percent. This Article analyzes the tools available to achieve this demanding goal. We assess changes in agriculture related to both the organic industry and the high-tech sector that are enabling farmers to become more efficient. Critically, biotechnology offers great promise to hasten the pace of increased agricultural efficiency through genetic engineering. While genetic modification has been controversial, we cannot exclude any viable policy option, especially one with so much promise. Yet the current regulatory environment …

Ace In The Hole: The Epa's Proposed Affordable Clean Energy Rule; Have Your Coal And Burn It Too, Cy M. Hudson

William & Mary Environmental Law and Policy Review

No abstract provided.

Two Popular Democracies' "Energy Independence" Initiatives Through The Lenses Of Constitutionalism, Environmentalism, And Judicial Activism Oeuvres--A Comparative Study Of The Trump And Modi Administrations, Vidhya V. Iyer

William & Mary Environmental Law and Policy Review

The energy independence approaches by two popular democracies, the United States and India, have recently been the center of attention. This Article examines whether two Democratic leaders, the President of the United States, Donald Trump, and Prime Minister of India, Narendra Modi, have maintained constitutionalism in light of executive orders and ordinances that focus on energy independence by way of promoting coal-fired power plants rather than focusing on the environment and human health. Based on constitutional underpinnings, this Article concludes that although both leaders and their administrations may not have violated their respective constitutions, they have certainly violated notions of …

Fire And Spotted Owls In Sierra Nevada National Forests: The Use Of Science In Management Plan Revision, Gordon Steinhoff

William & Mary Environmental Law and Policy Review

No abstract provided.

Duties, Disclosure, And Discord: Necessity To Resolve Circuit Split And Certainty Leidos Could Have Clarified For Litigation Strategy And Risk Allocation, Damian P. Gallagher

William & Mary Business Law Review

Securities litigation is a complex, specialized, and detailed practice of the law that depends on the expertise of courts and the Securities and Exchange Commission. From its inception, the securities laws, namely the Securities Act of 1933 and the Securities Exchange Act of 1934, provided a baseline expectation and prescription for the Securities and Exchange Commission to promulgate rules to fulfill the organic statute’s demands. Through time, technology, and the law generally, the securities laws have expanded significantly, not only asking, but also requiring, the courts to answer questions never contemplated by the original drafters of the laws to guide …

"Liberty Requires Accountability": The Appointments Clause, Lucia V. Sec, And The Next Constitutional Controversy, Michael A. Sabino

William & Mary Business Law Review

“Liberty requires accountability” is the essential precept which animates the Appointments Clause of Article II. This constitutional safeguard assures that those who exercise the sovereign power of the United States remain accountable both to the Chief Executive who appointed them and to the People who elected that President. The proviso was most recently tested in Lucia v. SEC, and, most assuredly, shall be in controversy again. After first expositing the high Court’s extensive Appointments Clause jurisprudence presaging Lucia, this Article thoroughly explores this newest Article II landmark, before concluding with commentary upon future Appointments Clause challenges expected to soon …

Time To Prune The Flora--Procedural Due Process, The Full Payment Rule And Assessable Penalties: Larson V. United States, Frank G. Colella

William & Mary Business Law Review

In Larson v. United States, the Second Circuit Court of Appeals rejected the opportunity to limit the scope of the Flora “full payment” rule when its strict application in the instant case foreclosed judicial review of the underlying tax controversy. As a result, the decision rubberstamped the IRS’s imposition of assessable penalties without any meaningful judicial review of those actions. The Article argues that the court’s decision to blindly apply the full payment rule, without considering any form of a hardship exception, effectively denied John Larson his right to due process of law as guaranteed by the Fifth Amendment …

Delegation And Time, Jonathan H. Adler, Christopher J. Walker

Faculty Publications

Most concerns about delegation are put in terms of the handover of legislative power to federal agencies and the magnitude of the legislative policy decisions made by such agencies. Likewise, most reform proposals, such as the Congressional Review Act and the proposed REINS Act, address these gap-filling, democratic deficit concerns. The same is true of the judicially created nondelegation canons, such as the major questions doctrine and other clear statement rules. This Article addresses a different, underexplored dimension of the delegation problem: the temporal complications of congressional delegation. In other words, broad congressional delegations of authority at one time period …

Codification Of The Economic Substance Doctrine: Agency Response And Certain Other Unforeseen Consequences, Rebecca Rosenberg

William & Mary Business Law Review

Section 7701(o) of the Internal Revenue Code incorporates the controversial judicial doctrine of economic substance into statutory language. In other words, it “codifies” the doctrine. (The economic substance doctrine generally provides that a tax benefit that goes beyond Congressional intent can be disallowed by the courts, even if the taxpayer meets all of the literal Code and regulatory requirements for claiming the benefit.)

This codification appears to have accidentally dissuaded the relevant agency (the Internal Revenue Service, or IRS) from raising economic substance issues—an effect that is contrary to Congress’s intent in enacting the doctrine into legislation. Essentially, Congress imported …

When Influence Encroaches: Statutory Advice In The Administrative State, William C. Hudson

William & Mary Bill of Rights Journal

This Article revisits the D.C. Circuit’s 1993 decision in FEC v. NRA Political Victory Fund, and concludes that the separation of powers reasoning applied in NRA Political Victory Fund could invalidate other common practices in the administrative state, such as statutory requirements that Executive Branch officers serve on the boards of corporations created and staffed by Congress.

Auer Evasions, Jonathan H. Adler

Faculty Publications

Auer v. Robbins requires federal courts to defer to federal agency interpretations of ambiguous regulations. Auer built upon, and arguably expanded, the Court’s long-standing practice of deferring to agency interpretations of their own regulations born in Bowles v. Seminole Rock. Although initially uncontroversial, the doctrine has come under fire from legal commentators and prominent jurists, including Auer’s author, the late Justice Antonin Scalia. As Justice Scalia came to recognize, Auer deference enables agencies to evade a wide range of legal constraints that are otherwise imposed upon agency behavior, the ability of agencies to take action with the force …

There And Back Again? Police Reforms Through The Prism Of The Recruitment Decisions In The High Court And The Court Of Appeal, Festus M. Kinoti

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

How Much Is “Substantial Evidence” And How Big Is A “Significant Gap”?: The Telecommunications Attorney Full Employment Act, Susan Lorde Martin

William & Mary Business Law Review

The late U.S. Supreme Court Justice Antonin Scalia described the Telecommunications Act of 1996 as “a model of ambiguity or indeed even self-contradiction.” Legal wags have also described the Act as the Telecommunications Attorney Full Employment Act. Twenty years after the Act became law, it is still being interpreted by courts all over the country and costing taxpayers millions of dollars as local governments defend their telecom decisions in lawsuits. The Act’s basic notion was to allow local zoning authorities to maintain their control over their territories with a few new limitations that would encourage cell phone service companies to …

Administrative Dissents, Sharon B. Jacobs

William & Mary Law Review

Commissioners, like judges, dissent. They do so at length, with vigor, and with persistence. Yet while separate judicial decisions are the subject of a rich literature, their administrative counterparts have long languished in obscurity. A closer look is warranted, however, because studying administrative dissent can enhance our understanding of internal agency operations as well as the relationships between agencies and other actors. This Article presents the results of an original review of separate statements at the Federal Energy Regulatory Commission and the Nuclear Regulatory Commission dating back four decades. It uses these findings to move beyond two common generalizations about …

Interauthority Relationships, Michael S. Green

Popular Media

No abstract provided.

Advancing Auer In An Era Of Retreat, Stephen M. Johnson

William & Mary Environmental Law and Policy Review

No abstract provided.

Regulatory Obstacles To Harm Reduction: The Case Of Smoking, Jonathan H. Adler

Faculty Publications

The inability of many smokers to quit is a significant public health problem. The demand for a product that can help smokers kick the habit is an entrepreneurial opportunity. In surveys, a majority of smokers express concern for their health and a desire to kick the habit.

Electronic cigarettes (“e-cigarettes” or “e-cigs”) appear to be the most promising smoking alternative to enter the market to date. E-cigarettes have the potential to satisfy smokers’ craving for nicotine in a less dangerous way. The available evidence suggests e-cigarettes expose smokers (and others) to a fraction of the health risks posed by combustible …

The Constitution Of Agency Statutory Interpretation, Evan J. Criddle

Faculty Publications

No abstract provided.

Restoring Chevron'S Domain, Jonathan H. Adler

Faculty Publications

For some three decades, Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. has stood at the center of administrative law. Although Chevron may have been somewhat "accidental," Chevron has been among the most important and consequential administrative law decisions of all time. It is, according to Cass Sunstein, a "foundational, even a quasi-constitutional text" in administrative law.

Foundational or not, Chevron's domain is under siege. In recent years, commentators have raised doubts about the doctrine's continued vitality and ultimate desirability. Indeed, some have suggested Chevron should be ditched altogether - if not by the courts, then perhaps by Congress. …

Agencies Running From Agency Discretion, J. B. Ruhl, Kyle Robisch

William & Mary Law Review

Discretion is the root source of administrative agency power and influence, but exercising discretion often requires agencies to undergo costly and time-consuming predecision assessment programs, such as under the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA). Many federal agencies thus have argued strenuously, and counter-intuitively, that they do not have discretion over particular actions so as to avoid such predecision requirements. Interest group litigation challenging such agency moves has led to a new wave of jurisprudence exploring the dimensions of agency discretion. The emerging body of case law provides one of the most robust, focused judicial examinations …

Reconceiving The Internal And Social Enforcement Effects Of Expressive Regulation, Alex Geisinger

William & Mary Law Review Online

As political resistance to traditional forms of regulation has increased, regulators have turned to the social and behavioral sciences to identify new and better regulatory tools. One of these new tools is expressive regulation. Expressive regulation harnesses the internal and social enforcement mechanisms of community norms as a means of changing individual behavior. Expressive regulation holds significant promise for influencing many different types of behaviors, and its low administrative and enforcement costs are particularly appealing in the current political climate. However, the use of expressive regulation is hampered by a well-entrenched belief in legal scholarship that social enforcement of norms …

Category Errors And Executive Power, Jonathan H. Adler

Faculty Publications

The purpose of this brief essay is to provide some clarity in the muddled discussion over executive power. Specifically, the aim is to help clarify what sorts of actions taken by the executive branch can be properly characterized as “enforcement” actions—where the President’s inherent authority to exercise prosecutorial discretion applies—and what sorts of actions cannot. Specifically, this essay seeks to explain why some particularly controversial actions—such as the Administration’s decision to delay the so-called employer mandate imposed by the Affordable Care Act (ACA) and to “tailor” the application of federal regulations governing greenhouse gas emissions under the Clean Air Act …

The Administrative Constitution In Exile, Mila Sohoni

William & Mary Law Review

For decades, the aspiration of administrative law has been to develop legal structures that would constrain and legitimate the exercise of agency power. The fruition of that hope was the complex internal blueprint that has made modern administrative governance both successful and legitimate the framework for executive action that many have hailed as the administrative constitution. Today, however, novel exercises of administrative power are crowding out old and familiar varieties, making the conventional forms of administrative action less and less relevant to the conduct of government.

This Article examines how the administrative constitution has changed over time and how that …