Administrative Law Commons^™

Presidential Signing Statements In The Federal Bureaucracy, Joshua M. Feinzig

Faculty Scholarship

This Note examines the relationship between presidential signing statements and administrative decision-making over the Obama and Trump presidencies and from a variety of institutional angles, updating previous studies rooted in a narrow set of observations from the mid-2000s. It identifies occasions where presidents, agencies, and other Executive Branch actors have referenced statements in the course of justifying inactions, rules and regulations, and legal characterizations of executive entities. In moving the focus beyond a strict causation approach to measuring influence, which suffers from proof limitations and indeterminacy, the Note offers a more modest formulation of statements’ contextual and atmospheric role in …

Violence And Nondelegation, Jacob D. Charles, Darrell A. H. Miller

Faculty Scholarship

Debates over delegation are experiencing a renaissance. These debates presuppose an initial distribution of constitutional authority between actors that cannot be redistributed, or that can be redistributed only according to some clear ex ante set of rules. Nondelegation in this sense often arises in debates about separation of powers and intergovernmental delegation, although scholars have begun applying the concept to delegations to private corporations and other private actors. The public delegation doctrine restricts one branch of government from transferring its constitutional authority to another branch, while the private delegation doctrine limits transfer of government power to private entities. In this …

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 …

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 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 …

Decoding Nondelegation After Gundy: What The Experience In State Courts Tells Us About What To Expect When We're Expecting, Daniel Walters

Faculty Scholarship

The nondelegation doctrine theoretically limits Congress’s ability to delegate legislative powers to the executive agencies that make up the modern administrative state. Yet, in practice, the U.S. Supreme Court has, since the New Deal, shied away from enforcing any limits on congressional delegation. That may change in the near future. In Gundy v. United States, the Court narrowly upheld a delegation, and a dissent signaled deep doubts about the Court’s longstanding “intelligible principle” standard and offered a new framework to replace it. Subsequent events strongly suggest that the Court is poised to move in the direction contemplated by the …

Marketing Authorization At The Fda: Paradigms And Alternatives, Adam I. Muchmore

Faculty Scholarship

In many critical industries, the Food and Drug Administration’s (FDA’s) marketing authorization decisions determine the range of products available in the United States. Because of the broad scope of the FDA’s marketing authorization responsibilities, the existing scholarship focuses on individual product categories, or small groups of product categories, regulated by the agency. This Article identifies how the existing literature has overlooked important connections between the FDA’s different marketing authorization programs. These connections suggest both explanations for existing programs and strategies for potential reforms.

The Article sets forth a two-level framework for analyzing the FDA’s marketing authorization role. At the first …

Same As It Ever Was : The Tijuana River Sewage Crisis, Non-State Actors, And The State, James M. Cooper

Faculty Scholarship

Sewage—a scary mixture of human waste and industrial toxins—flows into the Tijuana River Valley, an environmentally sensitive watershed that straddles the United Mexican States ("Mexico") and the United States of America. Treatment plants, a deteriorating one in Punta Bandera with limited capacity south of the border, and another in San Diego County completed in 1997, are inadequate to process the volume of sewage. So much sewage made its way into the Tijuana River that CBS 60 Minutes broadcast a special report on the binational environmental disaster in 2020.

Border factories and a population spike contribute to the sewage. Maquiladoras, …

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, …

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.

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.

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 …

Ships Passing In The Night: The Communications Act And The Convergence On Broadband, Stuart Minor Benjamin

Faculty Scholarship

The Communications Act of 1934 and its amendments (the “Act”), and the regulations implementing them, have been enormously important to traditional telephony, broadcasting, and multichannel video. Meanwhile, the internet is barely mentioned in the Act. It thus might seem reasonable to conclude that the Act stands as a colossus and that the argument for overhauling it has grown much stronger as the Telecommunications Act of 1996 (the “1996 Act”) becomes ever more outdated. In this Article I suggest otherwise. Specifically, I make three claims—one descriptive, one a bit speculative, and one normative. The descriptive claim is that significant portions of …

Removal Of Context: Blackstone, Limited Monarchy, And The Limits Of Unitary Originalism, Jed Handelsman Shugerman

Faculty Scholarship

The Supreme Court's recent decisions that the President has an unconditional or indefeasible removal power rely on textual and historical assumptions and a "removal of context." This article focuses on the "executive power" part of the Vesting Clause and particularly the unitary theorists' misuse of Blackstone. Unitary executive theorists overlook the problems of relying on England's limited monarchy: the era's rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. Unitary theorists provide no evidence that executive removal was ever identified as a "royal prerogative" or a default royal power. The …

Left/Right: Managing The Coming Clash Between Congressional Rights Enforcement And Judicial Doctrine, William D. Araiza

Faculty Scholarship

No abstract provided.

Unrules, Cary Coglianese, Gabriel Scheffler, Daniel E. Walters

Faculty Scholarship

At the center of contemporary debates over public law lies administrative agencies’ discretion to impose rules. Yet for every one of these rules, there are also unrules nearby. Often overlooked and sometimes barely visible, unrules are the decisions that regulators make to lift or limit the scope of a regulatory obligation through, for instance, waivers, exemptions, or exceptions. In some cases, unrules enable regulators to reduce burdens on regulated entities or to conserve valuable government resources in ways that make law more efficient. However, too much discretion to create unrules can facilitate undue business influence over the law, weaken regulatory …

Revitalizing Greenhouse Gas Permitting Inside A Biden Epa, Matt Haber, Seema Kakade

Faculty Scholarship

No abstract provided.

Environmental Enforceability, Seema Kakade

Faculty Scholarship

There are great expectations for a resurgence in federal environmental enforcement in a Biden-led federal government. Indeed, federal environmental enforcement suffered serious blows during the Trump Administration, particularly at the Environmental Protection Agency (EPA), including large cuts in the budget for enforcement and reversals of key enforcement policies. Yet, while important to repair the damage, truly strengthening federal environmental enforcement will require more. This Article highlights the need for greater attention to the multiple hurdles that plague environmental enforcement. In doing so it makes three contributions to the literature. First, it asserts that even though environmental statutes, regulations, and guidance …

The Equity E.O.: Building A Regulatory Infrastructure Of Inclusion, Olatunde C.A. Johnson

Faculty Scholarship

Among his first acts, President Biden signed Executive Order 13,985 to advance “Racial Equity and Support for Underserved Communities Through the Federal Government.” Alongside an order directing regulatory review to include “social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations” and an ambitious infrastructure plan, this Equity E.O. signals a new engagement of the administrative state in proactively promoting racial equity and other dimensions of inclusion. The outlines of the infrastructure initiative are still emerging, but what appears key is its conceptualization of infrastructure as extending beyond roads and buildings to the social and …

Arguing About The Jus Ad Bellum, Monica Hakimi

Faculty Scholarship

Quite a bit of research suggests that international law’s argumentative practice has value insofar as it leads to or affirms some kind of normative settlement. This chapter uses the argumentative practice in the jus ad bellum to counter that view. The chapter’s central claim is that arguments about the jus ad bellum are valuable, even when they do not lead to normative settlement and the law’s content on the issue in dispute remains contested. The reason they are valuable is that they promote certain values that are associated with the rule of law.

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 …

Regents: Resurrecting Animus/Renewing Discriminatory Intent, William Araiza

Faculty Scholarship

No abstract provided.

Presidential Primacy Amidst Democratic Decline, Ashraf Ahmed, Karen M. Tani

Faculty Scholarship

Fifty years ago, when the Harvard Law Review asked Professor Harry Kalven, Jr., to take stock of the Supreme Court’s 1970 Term, Kalven faced a task not unlike Professor Cristina Rodríguez’s. That Term’s Court had two new members, Justices Harry Blackmun and Warren Burger. The Nixon Administration was young, but clearly bent on making its own stamp on American law, including via the Supreme Court. Kalven thus expected to see “dislocations” when he reviewed the Court’s recent handiwork. He reported the opposite. Surveying a Term that included such cases as Palmer v. Thompson, Younger v. Harris, Boddie v. …

The Three Permissions: Presidential Removal And The Statutory Limits Of Agency Independence, Jane Manners, Lev Menand

Faculty Scholarship

Seven words stand between the President and the heads of over a dozen “independent agencies”: inefficiency, neglect of duty, and malfea­sance in office (INM). The President can remove the heads of these agencies for INM and only INM. But neither Congress nor the courts have defined INM and hence the extent of agency independence. Stepping into this void, some proponents of presidential power argue that INM allows the President to dismiss officials who do not follow presidential directives. Others contend that INM is unconstitutional because it prevents Presidents from fulfilling their duty to take care that the laws are faithfully …

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, …

Presidential Progress On Climate Change: Will The Courts Interfere With What Needs To Be Done To Save Our Planet?, Michael B. Gerrard

Faculty Scholarship

The Biden Administration is undertaking numerous actions to reduce greenhouse gas emissions and transition away from fossil fuels as part of the fight against climate change. Many of these actions are likely to be challenged in court. This paper describes the various legal theories that are likely to be used in these challenges, assesses their prospects of success given the current composition of the Supreme Court, and suggests ways to minimize the risks.

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 …

Judges And The Deregulation Of The Lawyer's Monopoly, Jessica K. Steinberg, Anna E. Carpenter, Colleen F. Shanahan, Alyx Mark

Faculty Scholarship

In a revolutionary moment for the legal profession, the deregulation of legal services is taking hold in many parts of the country. Utah and Arizona, for instance, are experimenting with new regulations that permit nonlawyer advocates to play an active role in assisting citizens who may not otherwise have access to legal services. In addition, amendments to the Rules of Professional Conduct in both states, as well as those being contemplated in California, now allow nonlawyers to have a partnership stake in law firms, which may dramatically change the way capital for the delivery of legal services is raised as …

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.

Taking Appropriations Seriously, Gillian E. Metzger

Faculty Scholarship

Appropriations lie at the core of the administrative state and are be­com­ing increasingly important as deep partisan divides have stymied sub­stan­tive legislation. Both Congress and the President exploit appropria­tions to control government and advance their policy agendas, with the border wall battle being just one of several recent high-profile examples. Yet in public law doctrine, appropriations are ignored, pulled out for spe­cial legal treatment, or subjected to legal frameworks ill-suited for appro­priations realities. This Article documents how appropriations are mar­ginalized in a variety of public law contexts and assesses the reasons for this unjustified treatment. Appro­priations’ doctrinal marginalization does not …