Administrative Law Commons^™

Chevron's 51 Imperfect Solutions., Christopher J. Walker, Neena Menon

Articles

In June 2024, the U.S. Supreme Court eliminated the judicial deference federal agencies previously received for their statutory interpretations, overturning the Court’s landmark 1984 decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. While Chevron was never binding on state courts, where the balance of powers and state constitutions may require different or no deference to agencies, numerous states have adopted Chevron deference, Skidmore weight, or similar deference regimes for judicial review of agency legal interpretations. Despite these developments, little scholarly attention has been paid to how and why states have developed administrative law’s deference doctrines, how the …

Tossing Sand In The Regulatory Gears: Hurdles To Policy Progress In The Supreme Court, Nina A. Mendelson

Articles

In the last few years, the Supreme Court has been a source of seismic change. In Dobbs v. Jackson Women’s Health Organization, the Court overruled Roe v. Wade, which had protected the right to abortion for nearly fifty years. In Loper Bright Enterprises v. Raimondo, the Court abandoned so-called Chevron deference to particular categories of administrative agency interpretations, a doctrine viewed as bedrock for over forty years. Humphrey’s Executor v. United States, the 1935 ruling validating independent multi-member commissions such as the Federal Trade Commission, Securities and Exchange Commission, and Federal Communications Commission, may soon join the others on the …

Chenery Ii Revisited, Daniel T. Deacon

Articles

Ever since the Supreme Court’s 1947 decision in SEC v. Chenery Corporation, known as Chenery II, agencies have enjoyed wide latitude to develop policy through individual adjudications in addition to rulemaking. Chenery II has never been completely uncontroversial, and in recent years, calls to overturn or limit it have been expressed in increasingly fervent tones. Agency policymaking by adjudication has emerged as a new front in the struggle over the administrative state.

Against the backdrop of such calls, this Article revisits some of the fundamental questions concerning the Chenery II doctrine. I argue in favor of retaining Chenery II’s core …

The Origins Of The Major Questions Doctrine, Rachel Rothschild

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In a series of recent cases, the Supreme Court has invoked the newly named “major questions doctrine” to strike down agency regulations that protect public health and the environment. Several Justices have argued that while the name “major questions” may be new, these decisions are simply the latest iteration in a longstanding effort of the courts to curtail the explosive growth of the administrative state since 1970. The first paradigmatic example of this line of cases is the 1980 “Benzene” case, in which the Supreme Court set aside the Occupational Safety and Health Administration (OSHA)’s new workplace standards for the …

Sidestepping Substance: How Administrative Law Plays An Outsized Role In Shaping Environmental Policy And Why Recalibration Is Necessary, Sanne H. Knudsen

Articles

Administrative law and environmental law are companion fields. Still, they are not interchangeable. They promote different values. And yet, sometimes when courts resolve environmental disputes by relying on administrative doctrines, courts elevate the values of administrative law over those codified in environmental statutes. This is particularly concerning when courts rely on judicially-created administrative law doctrines to sidestep congressional intent as expressed by the substantive aims of environmental statutes.

To reduce the risk of sidestepping—whether inadvertent or intentional—this Article critically examines how administrative law doctrines can undermine environmental law. Drawing on prominent case examples, including the Supreme Court decision in Sackett …

The Administrative Procedure Act Problem Reconsidered, Reuven S. Avi-Yonah

Articles

Tax Notes contributing editor Ryan Finley’s excellent article on the 3M case1 and the Administrative Procedure Act provides an opportunity to reconsider the damage done to tax law by taxpayers constantly invoking the APA to invalidate regulations or IRS notices.

Administrative Reliance, Haiyun Damon-Feng

Articles

Presidential regime change and the federal policy shifts that accompany it raise significant questions concerning continuity, stability, and governance in the administrative state. Presidential policymaking through the administrative state may generate serious reliance interests recognized under administrative law (what this Article calls “administrative reliance”), which agencies must consider prior to enacting policy change. Administrative reliance has developed into a robust form of judicial review over agency action. Administrative reliance has been invoked in highly politicized contexts, such as immigration law, to challenge a sitting administration’s termination of a prior administration’s policies. Despite its powerful and consequential effects, the doctrine of …

Enhancing Public Access To Agency Law, Bernard Bell, Cary Coglianese, Michael Herz, Margaret Kwoka, Orly Lobel

Articles

A just, democratic society governed by the rule of law requires that the law be available, not hidden. This principle extends to legal materials produced by administrative agencies, all of which should be made widely accessible to the public. Federal agencies in the United States do disclose online many legal documents—sometimes voluntarily, sometimes in compliance with statutory requirements. But the scope and consistency of these disclosures leaves considerable room for improvement. After conducting a year-long study for the Administrative Conference of the United States, we identified seventeen possible statutory amendments that would improve proactive online disclosure of agency legal materials. …

It Ain't That Broke-Agency Heads' Approval Of Enforcement Actions, Michael E. Herz

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No abstract provided.

What Can State Medical Boards Do To Effectively Address Serious Ethical Violations?, Tristan Mcintosh, Elizabeth Pendo, Heidi A. Walsh, Kari A. Baldwin, Patricia King, Emily E. Anderson, Catherine V. Caldicott, Jeffrey D. Carter, Sandra H. Johnson, Katherine Matthews, William A. Norcross, Dana C. Shaffer, James M. Dubois

Articles

State Medical Boards (SMBs) can take severe disciplinary actions (e.g., license revocation or suspension) against physicians who commit egregious wrongdoing in order to protect the public. However, there is noteworthy variability in the extent to which SMBs impose severe disciplinary action. In this manuscript, we present and synthesize a subset of 11 recommendations based on findings from our team’s larger consensus-building project that identified a list of 56 policies and legal provisions SMBs can use to better protect patients from egregious wrongdoing by physicians.

Chevron And Stare Decisis, Kent Barnett, Christopher J. Walker

Articles

This Term, in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. U.S. Department of Commerce, the Supreme Court will expressly consider whether to overrule Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.—a bedrock precedent in administrative law that a reviewing court must defer to a federal agency’s reasonable interpretation of an ambiguous statute that the agency administers. In our contribution to this Chevron on Trial Symposium, we argue that the Court should decline this invitation because the pull of statutory stare decisis is too strong to overcome.

Rethinking Innovation At Fda, Rachel E. Sachs, Nicholson Price, Patricia J. Zeitler

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In several controversial drug approval decisions in recent years, the Food & Drug Administration (“FDA”) has publicly justified its decision partly on the ground that approving the drugs in question would support innovation in those fields going forward. To some observers, these arguments were surprising, as the Agency’s determination whether a drug is “safe” and “effective” does not seem to depend on whether its approval also supports innovation. But FDA’s use of these innovation arguments in drug approval decisions is just one example of the ways in which the Agency has come to make many innovation-related judgments as part of …

The Submerged Administrative State, Gabriel Scheffler, Daniel E. Walters

Articles

The United States government is experiencing a reputation crisis: after decades of declining public trust, many Americans have lost confidence in the government's capacity to perform its basic functions. While various explanations have been offered for this worrying trend, these existing accounts overlook a key factor: people are unfamiliar with the institutions that actually do most of the governing-administrative agencies-and they devalue what they cannot easily observe. The "submerged" nature of the administrative state is, we argue, a central reason for declining trust in government.

This Article shows that the administrative state is systematically submerged in two ways. First, administrative …

Improving The Affirmative Disclosure Of Agency Legal Materials, Bernard W. Bell, Cary Coglianese, Michael E. Herz, Margaret B. Kwoka, Orly Lobel

Articles

It is axiomatic that in a democratic society the law must be broadly accessible. Administrative agencies produce a plethora of materials imposing legal obligations on commercial or individual actors in the private sector. Other materials bind the agencies themselves in ways that affect the rights or interests of private parties. Still other materials provide the public with information about how agencies interpret and apply the statutes and rules they administer, or how agencies seek to deploy their discretion or take other actions that can affect private individuals or organizations. This Article focuses on improving the public availability of all of …

Regulating Driving Automation Safety, Matthew Wansley

Articles

Over forty thousand people die in motor vehicle crashes in the United States each year, and over two million are injured. The careful deployment of driving automation systems could prevent many of these deaths and injuries, but only if it is accompanied by effective regulation. Conventional vehicle safety standards are inadequate because they can only test how technology performs in a controlled environment. To assess the safety of a driving automation system, regulators must observe how it performs in a range of unpredictable, real world edge cases. The National Highway Traffic Safety Administration (NHTSA) is trying to adapt by experimenting …

The Right To Remove In Agency Adjudication, Christopher J. Walker, David Zaring

Articles

In SEC v. Jarkesy, the Supreme Court will decide the constitutional future of agency adjudication, especially in the context of agency enforcement actions and the imposition of civil penalties. If the Court agrees with the Fifth Circuit on any of its three independent reasons for unconstitutionality, agency enforcement and adjudication schemes across the federal regulatory state will be severely disrupted, in ways that are detrimental to both the regulator and the regulated. In this Essay, we propose a path forward: In certain circumstances, the regulated party should have a right to remove an enforcement action from an in-house agency adjudication …

Two Takes On Administrative Change From The Roberts Court, Daniel Deacon, Leah Litman

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In Loper Bright Enterprises v. Raimondo, the Supreme Court finally did what many long hoped (or feared) it would do: overrule Chevron v. Natural Resources Defense Council. Chevron instructed courts to defer to an agency’s interpretation of an ambiguous statutory provision, provided the interpretation was reasonable. Chevron, according to Justice Kagan, had “served as a cornerstone of administrative law” and “the warp and woof of modern government, supporting regulatory efforts of all kinds—to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.” Not surprisingly, statutes governing such matters contain quite a number of …

Congress And Shifting Sands In Administrative Law., Christopher J. Walker

Articles

In recent years, we have seen an anti-administrativist turn in the federal judiciary, with the Supreme Court limiting agency power in important respects. These shifting sands in administrative law seem to be motivated, at least in part, by the Court’s perception of the rise of presidential administration and decline in legislative activity. As part of the Widener Commonwealth Law Review Judging in Administrative Law Symposium, this Essay assesses how the Court has responded to concerns about over-presidentialism and then sketches out several ways Congress can respond to reassert itself in federal lawmaking.

Situating The Modern Public Trust Doctrine In Trust Law: The Duty Of Loyalty And The Case For Bifurcated, De Novo Judicial Review, Edward A. Zelinsky

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This article situates the modern public trust doctrine (PTD) in contemporary trust law. Grounding the PTD in trust law leads to two important corollaries. First, the PTD planted in trust law imposes upon government actors and agencies trust law’s fiduciary duty of loyalty. In the context of the PTD, that duty of loyalty runs to the public as the beneficiary of the PTD. Second, faced with plausible claims that this fiduciary duty of loyalty to the public has been violated, courts should apply trust law’s de novo standard of review to those administrative and legislative decisions alleged to impair public …

The Promise And Peril Of Chatgpt In Informal Rulemaking, Stephen Johnson

Articles

The dawn of e-rulemaking promised broader public participation, increased government efficiency, and higher quality decisionmaking. Moving notice and comment rulemaking online has increased the number of persons participating in the process for some rules, but not necessarily the quality of the comments they are submitting. In addition, in some cases, the transformation of the process has created new challenges for agencies by making it easier to flood agencies with duplicative and potentially fraudulent comments to which the agencies must respond. Every technological innovation holds promise for improvement of the rulemaking process, though, and artificial intelligence, including ChatGPT, is the latest …

Harm Egalitarianism, Michael E. Herz

Articles

No abstract provided.

The Coming Copyright Judge Crisis, Saurabh Vishnubhakat, Dave Fagundes

Articles

Commentary about the Supreme Court's 2021 decision in United States v. Arthrex, Inc. has focused on the nexus between patent and administrative law. But this overlooks the decision's seismic and as-yet unappreciated implication for copyright law: Arthrex renders the Copyright Royalty Board ("CRB") unconstitutional. The CRB has suffered constitutional challenge since its 2004 inception, but these were seemingly resolved in 2011 when the D.C. Circuit held that the CRB's composition did not offend the Appointments Clause as long as Copyright Royalty Judges ("CRJs") were removable atwill. But when the Court invalidated the selection process for administrative patent judges on a …

Deregulation: Too Big For One Branch, But Maybe Not For Two, Stephen M. Johnson

Articles

When President Trump took office in 2017, he pursued a deregulatory agenda that exceeded even that of President Reagan. Environmental rules and policies were a major target of the Administration. The President deployed a mix of traditional tools, such as executive orders, guidance documents and policies, and rulemaking to suspend or reverse longstanding regulations and policies of the Environmental Protection Agency (EPA), the Department of the Interior, and other environmental agencies. The Administration also utilized the Congressional Review Act as it had not been used before and aggressively sought abeyances in litigation challenging disfavored rules and policies to advance its …

Rulemaking 3.0: Incorporating Ai And Chatgpt Into Notice And Comment Rulemaking, Stephen M. Johnson

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Technological innovations since the turn of the century have created opportunities to increase public participation in notice and comment rulemaking, increase the efficiency of the process, and increase the quality of the rules adopted by agencies. For some rules, online rulemaking and social media have facilitated increased public participation, but have not necessarily facilitated improvements in the quality of public comments. In addition, in some cases, the transformation of the process has created new challenges for government agencies by making it easier for supporters or opponents of rules to flood agencies with duplicative and potentially false comments to which the …

Assessing Visions Of Democracy In Regulatory Policymaking, Shoba Sivaprasad Wadhia, Christopher J. Walker

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Motivated in part by Congress’s failure to legislate, presidents in recent years seem to have turned even more to the regulatory process to make major policy. It is perhaps no coincidence that the feld of administrative law has similarly seen a resurgence of scholarship extolling the virtues of democratic accountability in the modern administrative state. Some scholars have even argued that bureaucracy is as much as if not more democratically legitimate than Congress, either in the aggregative or deliberative sense, or both.

The Exoskeleton Of Environmental Law: Why The Breadth, Depth And Longevity Of Environmental Law Matters For Judicial Review, Sanne H. Knudsen

Articles

Environmental law is pragmatic, inevitable, and intentional. In the aggregate, the numerous federal environmental statutes are not simply a patchwork of ad hoc responses or momentary political breakthroughs to isolated public health problems and resource concerns. Together, they are a group of repeated, legislatively-backed commitments to embrace self-restraint for self-preservation.

Self-restraint and discipline are the essence of environmental law. Indeed, if one studies the patterns and repeated choices in environmental law 's many statutory texts, one can start to appreciate environmental law 's indispensable role in society: it serves as an enduring "exoskeleton," a sort of protective armor created over …

Taxes, Administrative Law, And Agency Expertise: Questioning The Orthodoxy, Scott Schumacher

Articles

One of the foundations of administrative law is that federal agencies and their employees are experts in their respective fields. In addition, the many judgments and decisions made by these experts are based on a thorough record after extensive factfinding. As a result, so the theory goes, courts, particularly courts of general jurisdiction like the United States District Courts, should give deference to the determinations made by these experts. But what if the facts underpinning this foundation are not true in all cases? Should courts nevertheless provide deference to decisions by agencies when it is evident that an agency's determinations …

Fda's Revolving Door: Reckoning And Reform, Laura Karas

Articles

Recent controversy over the FDA's approval of the Alzheimer's therapy Aduhelm (aducanumab) and the Duchenne muscular dystrophy therapy Exondys 51 (eteplirsen) called into question the impartiality and independence of high-level FDA regulators. Atypical associations between FDA regulators and pharmaceutical company sponsors, in addition to fierce internal disputes over the adequacy of the evidence, elicited criticism and triggered concern about potential undue influence at the FDA. The revolving door is one persistent source of undue influence that overshadows the discharge of FDA regulators' duties to the public. Exit from government to private-sector employment via the "revolving door" is a frequent occurrence …

Public Engagement, Equity, And Executive Order 14,094., Nina A. Mendelson

Articles

Executive Order 14,094 ("the Order"), signed by President Biden in April, 2023, breaks ground to make regulatory decisionmaking more equitable and inclusive, continuing a theme the Biden Presidency began with Executive Order 13,985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government. Agencies must, of course, hear from those who are regulated, but genuinely equitable decisionmaking also requires agencies to hear and engage the concerns of affected individuals and communities, including underserved communities. This recognizes that many Americans have a distinct and substantial interest in the benefits promised by legislatively created regulatory programs, whether those include safe …

Congress's Anti-Removal Power, Christopher J. Walker, Aaron Nielson

Articles

Statutory restrictions on presidential removal of agency leadership enable agencies to act independently from the White House. Yet since 2020, the U.S. Supreme Court has held two times that such restrictions are unconstitutional precisely because they prevent the President from controlling policymaking within the executive branch. Recognizing that a supermajority of the Justices now appears to reject or at least limit the principle from Humphrey’s Executor that Congress may prevent the President from removing agency officials based on policy disagreement, scholars increasingly predict that the Court will soon further weaken agency independence if not jettison it altogether.

This Article challenges …