Administrative Law Commons^™

The Unitary Theorists' Appointments Clause Problems, Jed Handelsman Shugerman

Faculty Scholarship

The unitary executive theorists’ recent retreat to the Appointments Clause as a basis for unconditional presidential removal power is contradicted by the text and by overwhelming originalist evidence.

It is a surprising argument for a power of presidential removal, because the text of the Appointments Clause plainly requires both the President and Senate to appoint. The noncommon sense reading, that the president alone appoints, and thus the president can remove, was not in any of the Trump Administration’s briefs, but it was in a single amicus brief, and it was picked up in oral argument and the mainstream media.

This …

Keeping Evidence Real, Anya Bernstein, Julia Simon-Kerr

Faculty Scholarship

Commentators largely agree that the Federal Rules of Evidence have problems. Expert testimony standards admit junk science. Impeachment rules chill defendant testimony. The hearsay regime defies consistent application and obstructs self-representation. The list goes on: Many rules fail to assist, or affirmatively thwart, jurors trying to make good decisions. Such shortcomings disproportionately harm those with the least power in the system, raising profound questions about whether the evidence code serves its statutory mandate—to promote truth and justice in court proceedings. In the face of widely recognized problems, the government body charged with managing the evidence code—the Advisory Committee on Evidence …

Sidelining The Public, Anya Bernstein, Glen Staszewski, Wendy E. Wagner

Faculty Scholarship

This Article challenges the widely held view that Congress is the American government’s institution closest to the people, while administrative agencies are unaccountable and unresponsive. Providing a systematic, side-by-side institutional analysis, we compare the actual practices and capacities of these two institutions to engage affected publics in policymaking. We find that despite the democratic bona fides of an elected legislature, agencies possess superior capacities, more evolved practices, stricter rules, and stronger incentives for meaningful public engagement. Yet these capacities have been eroded—particularly over the last 50 years—by intensifying legal, political, and managerial obstacles. The Supreme Court and political actors have …

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.

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.

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 …

Presidential Removal As Article I, Not Article Ii, Gary Lawson, Jed Handelsman Shugerman

Faculty Scholarship

As a matter of original public meaning, Article I’s Necessary and Proper clause is the starting point for both Congress’s power to create offices and the limits on that power.

We believe that many legal scholars have demonstrated that, as a matter of original public meaning, the term “executive power” did not imply a presidential removal power, and Article II did not imply an indefeasible (unconditional) presidential removal power. By contrast, Article I’s Necessary and Proper Clause is a basis for limiting congressional power that is more historically grounded in original public meaning and in early practice. Tenure protections and …

Quasi-Judicial: A History And Tradition, Beau J. Baumann, Jed Handelsman Shugerman

Faculty Scholarship

In challenging the historical assumptions underlying the unitary executive theory, scholars have made several seemingly unrelated discoveries. First, "judicial" power was conceived in English law as a subset of "executive" authority. Second, Congress at or near the Founding insulated certain court-like comissions from presidential control. Finally, the "quasi-judicial" and "quasi-legislative" powers that were central to the holding of Humphrey's Executor flowed from a forgotten nineteenth-century legal tradition was guiding Congress's construction of the modern state. This Essay connects these findings into a single claim: generations of American stretching back past the Founding have instinctively insulated administrators granted quasi-judicial functions from …

Presidents, Opinions, And Independent Officers, Jed Handelsman Shugerman

Faculty Scholarship

The Opinions in Writing Clause is a persistent textual problem for the claim that Article II implies an indefeasible removal power: If the Framers believed they had given the president an unconditional removal power, why would they also specify a lesser power merely to ask for opinions? New historical research confirms this textual problem was also contextual: early state constitutions, the Ratification debates, and the First Congress indicate that the Opinions Clause’s original public meaning signaled independence of department heads, or at least the possibility of congressional requirements like good cause.

Legal scholars have already shown that the texts of …

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 …

Amicus In Trump V. Cook: The Fed, Offices As Property, And The Meaning Of “Cause”, Jed Handelsman Shugerman

Faculty Scholarship

The Federal Reserve Act states that “each member shall hold office for a term of fourteen years from the expiration of the term of his predecessor, unless sooner removed for cause by the President.” 12 U.S.C. § 242. Based on the historical record, when Congress creates an office with a fixed term of years and protects against removal without “cause,” Congress has both granted “a constitutionally protected property interest” under the Fifth Amendment (that cannot be taken away without “due process”) and extended a statutory entitlement to receive fair notice and a meaningful opportunity to respond before any removal may …

Dark Patterns As Disloyal Design, Johanna Gunawan, Woodrow Hartzog, Neil Richards, David Choffnes, Christo Wilson

Faculty Scholarship

Lawmakers have started to regulate “dark patterns,” understood to be design practices meant to influence technology users’ decisions through manipulative or deceptive means. Most agree that dark patterns are undesirable, but open questions remain as to which design choices should be subjected to scrutiny, much less the best way to regulate them.

In this Article, we propose adapting the concept of dark patterns to better fit legal frameworks. Critics allege that the legal conceptualizations of dark patterns are overbroad, impractical, and counterproductive. We argue that law and policy conceptualizations of dark patterns suffer from three deficiencies: First, dark patterns lack …

A Historical Case For A Robust But Non-Remedial Seventh Amendment, Jed Handelsman Shugerman

Faculty Scholarship

In Jarkesy, the Supreme Court rightly held that the Seventh Amendment required a jury trial for a case fundamentally similar to common law fraud, and it rightly limited the scope of the “public rights” exception to the Seventh Amendment. Grounded in historical and originalist methods, this essay makes four suggestions after Jarkesy:

1. Following Jarkesy, the judiciary should continue a more robust enforcement of the Seventh Amendment right to a jury trial. The courts should eliminate the “public rights” exception to the Seventh Amendment, which does not appear to have an original link to the Seventh Amendment. The …

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 …

Capital Formation, The Sec, And Accredited Investors, Neal F. Newman, Lawrence J. Trautman, Brian Elzweig

Faculty Scholarship

Protecting the investing public, while simultaneously facilitating the efficient flow of capital needed by all new and growing businesses continues as a primary responsibility of the U.S. Securities and Exchange Commission (SEC). Enhancing the capital formation process is a necessary step in the creation of jobs and growth of any economy. Central to the SEC’s regulatory schematic is the proposition that some particularly sophisticated and wealthy investors require less protection than those with less knowledge, experience, and resources. During December 2023, for just the third time, the SEC staff issued a report examining the status of the natural person accredited …

Tomorrow’S Climate Law, Today, Daniel E. Walters

Faculty Scholarship

The prospects for domestic legislation or international treaties that would require governments, businesses, and individuals to stop emitting the greenhouse gases that cause global climate change are particularly bleak these days. Even as the United States has recently passed its most ambitious climate legislation to date in the Inflation Reduction Act and related “green industrial policy” legislation, these successes were ultimately a compromise with politicians who refused to consider more direct controls on emissions. Assuming they survive the second Trump Administration, the green subsidies and nudges contained in these laws, coupled with a groundswell of private environmental governance, will do …

The Lost English Roots Of Notice-And-Comment Rulemaking, Rephael G. Stern

Faculty Scholarship

Notice-and-comment rulemaking is arguably the most important procedure in the modern administrative state. Influential accounts even frame it as the 1946 Administrative Procedure Act’s “most important idea.” But its historical origins are obscure. Scholars have variously suggested that it grew out of the constitutionally sanctioned practice of congressional petitioning, organically developed from the practices of nineteenth-century agencies, or was influenced by German conceptions of administrative rulemaking. These histories, however, are incomplete. Using original archival research, this Article demonstrates that notice-and-comment rulemaking was the product of a series of American transplantations of English rulemaking procedures that developed in the late nineteenth …

Working With Statutes, Anya Bernstein, Cristina Rodriguez

Faculty Scholarship

In its decision overruling the Chevron doctrine—which directed judges to accept an agency’s reasonable interpretation of ambiguous statutory language—the Supreme Court declares: “[A]gencies have no special competence in resolving statutory ambiguities. Courts do.” This Article shows why this statement exhibits a profoundly blinkered judicial hubris. Our interview-based empirical study, involving dozens of agency officials across the administrative state, shows agencies’ special, indeed unique, competence in working with statutes to make democratic enactments real.

Agencies, we show, act as a statute’s custodians, managing the statutory regime over a life cycle that exceeds any single governing coalition. Borrowing ideas from private law, …

Against Monetary Primacy, Yair Listokin, Rory Van Loo

Faculty Scholarship

To reduce inflation, the Federal Reserve (Fed) raises interest rates. But every month with high interest rates increases the risk of a devastating recession. Recessions impose not only short-term pain in the form of widespread unemployment but also lifelong harm for many, as vulnerable workers and those who start their careers during a downturn never fully recover. Yet hiking interest rates is the centerpiece of U.S. inflation-fighting policy. When inflation is high, the Fed raises interest rates until inflation is tamed, regardless of the consequent sacrifices. We call this inflation-fighting paradigm “monetary primacy.” Despite its great risks, monetary primacy has …

Legislating For The Future, Jonathan S. Gould, Rory Van Loo

Faculty Scholarship

Public policy must address threats that will manifest in the future. Legislation enacted today affects the severity of tomorrow’s harms arising from biotechnology, climate change, and artificial intelligence. This Essay focuses on Congress’s capacity to confront future threats. It uses a detailed case study of financial crises to show the limits and possibilities of legislation to prevent future catastrophes. By paying insufficient attention to Congress, the existing literature does not recognize the full nature and extent of the institutional challenges in regulating systemic risk. Fully recognizing those challenges reveals important design insights for future-risk legislation.

We first examine Congress as …

What The Hell Is The Major Questions Doctrine?, Jack M. Beermann

Faculty Scholarship

Anita S. Krishnakumar, What the New Major Questions Doctrine Is Not, 92 Geo. Wash. L. Rev. 1117 (2024).

When the sun sets in New York City, it rises in Tokyo. Okay, maybe not exactly, but you get the idea: setting somewhere, rising somewhere else. Now substitute Chevron for N.Y.C. and the Major Questions Doctrine for Tokyo. For the past forty years, administrative law scholars have been arguing over Chevron, and now that the sun has set on that doctrine, it’s time to turn our attention to the new rising sun, the Major Questions Doctrine (“MQD”). The sudden emergence …

Who Teaches Consumer Law?, Jeff Sovern

Faculty Scholarship

This paper reports on a survey of 31 law professors teaching consumer protection law conducted in connection with the Center for Consumer Law & Economic Justice at the UC Berkeley School of Law and the Center for Consumer Law at the University of Houston Law Center’s 2024 Teaching Consumer Law Conference. Surveys posed at previous editions of the Teaching Consumer Law Conference focused largely on what topics are covered in consumer law courses. The 2024 iteration of the survey instead explored responding professors’ goals in consumer law courses and experiences with and views on consumer law matters. Among the findings: …

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.

Doge's Matrix Structure And Presidential Power, Jason Marisam

Faculty Scholarship

At the start of his second term, President Trump created the Department of Government Efficiency (DOGE), a novel White House entity tasked with reshaping the federal bureaucracy. Far more than a traditional advisory commission, DOGE employed a matrix structure that embedded staff across executive agencies, establishing dual reporting lines to both agency heads and the White House. This essay argues that DOGE’s organizational design represents a structural innovation in presidential control and an evolution of the longstanding “czar” model. Drawing on organizational and principal-agent theories, the essay explores how the matrix structure enhanced the President’s capacity to monitor agency behavior, …

Self-Regulation In Emerging And Innovative Industries, Daniel E. Walters, Hannah J. Wiseman

Faculty Scholarship

Self-regulation—governance of firm behavior by private entities—has a long history both in the United States and globally, and there is an extensive literature on the topic. But there has been far less attention paid to the role self-regulation can play in spurring and enabling innovation and growth within emerging industries. These industries—both currently ascendant ones such as hydrogen and artificial intelligence, as well as formerly new (but now well established) activities in hydraulic fracturing and Internet communications—plausibly benefit from self-regulation’s ability to coordinate economic actors and reassure often skeptical publics. Examining the ways that self-regulation impacts this special type of …

Rulemaking Petitions In A World Without Deference To Agencies: A New Lease On Life?, Daniel E. Walters

Faculty Scholarship

Often overlooked in the study and practice of administrative law, rulemaking petitions are means by which interested persons can prompt federal agencies to implement the statutes they administer in particular ways. After the Supreme Court’s 2024 decisions in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), and Ohio v. Environmental Protection Agency, 144 S. Ct. 2040 (2024), rulemaking petitions are about to experience a renaissance—one that could reshape environmental law, should environmental advocates choose to leverage the procedure.

The Great Unsettling: Administrative Governance After Loper Bright, Cary Coglianese, Daniel E. Walters

Faculty Scholarship

“Chevron is overruled.” These three words surely captured more attention than any others in the U.S. Supreme Court’s thirty-five-page opinion in Loper Bright Enterprises v. Raimondo. For forty years, the Chevron doctrine had been virtually synonymous with administrative law. Now that the Court has taken a step that many scholars thought unfathomable even just a few years ago, speculation abounds about the possible downstream impacts of Loper Bright on both what agencies will be able to do in the future and how lower courts will respond when reviewing agency action. The vast majority of early expert commentaries suggest …