Administrative Law Commons^™

Not Why, But How: Applying The Sharp Edge Of The Law In Administrative Law Judicial Review In Singapore, Tan K. B. Eugene

Research Collection Yong Pung How School Of Law

The management and control of power, and, in particular, the endeavour to strike the appropriate balance between affording governments the ability to act swiftly and decisively in the public interest while providing for adequate safeguards against governmental excess, is an intensely difficult undertaking. There is no one model that is correct for all times and all places.

Known Unknowns: Unmeasurable Hazards And The Limits Of Risk Regulation, Timothy D. Lytton

Oklahoma Law Review

No abstract provided.

The Sec And "Major Questions Doctrine" Questions, Donna M. Nagy

Articles by Maurer Faculty

Nearly two years ago, in the wake of the Supreme Court’s formal adoption of what it termed the “major questions doctrine,” the Wall Street Journal reported a prediction that “‘every corporate securities lawyer in America is going to now fashion their arguments against SEC rulemaking to force-fit it into [that doctrine].’” As articulated by the sharply divided 6- 3 majority in West Virginia v. EPA, major questions doctrine (MQD) analysis is warranted in certain “extraordinary cases” involving a “transformative expansion” in a federal agency’s regulatory authority that is premised on “a merely plausible textual basis for the agency action.” Extraordinariness, …

Public Services In Railway Freight Transport, Stefan A. Jarecki

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

So far, practitioners and academics generally believed that in land transport, the concept of public services could only refer to passenger traffic. Recently, this approach has changed. The European Commission has stated that public services can also be provided in railway freight transport. Railway freight transport services can only be qualified as public services when the given Member State establishes that there is a genuine need for such services, a need that is not, or is not sufficiently met by the market. Currently, to provide financing of some railway freight services, Member States have to fulfil the Altmark conditions, or …

The Lawlessness Of Sackett V. Epa, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

When the Supreme Court speaks on a disputed statutory interpretation question, its words and edicts undoubtedly are the final judicial word, binding lower courts and the executive branch. Its majority opinions are the law. But the Court’s opinions can nonetheless be assessed for how well they hew to fundamental elements of respect for the rule of law. In particular, law-respecting versus law-neglecting or lawless judicial work by the Court can be assessed in the statutory interpretation, regulatory, and separation of power realms against the following key criteria, which in turn are based on some basic rule of law tenets: analysis …

Fears, Faith, And Facts In Environmental Law, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

Environmental law has long been shaped by both the particular nature of environmental harms and by the actors and institutions that cause such harms or can address them. This nation’s environmental statutes remain far from perfect, and a comprehensive law tailored to the challenges of climate change is still elusive. Nonetheless, America’s environmental laws provide lofty, express protective purposes and findings about reasons for their enactment. They also clearly state health and environmental goals, provide tailored criteria for action, and utilize procedures and diverse regulatory tools that reflect nuanced choices.

But the news is far from good. Despite the ambitious …

Loper Bright In A Larger Interpretive Perspective: Is This Justice Scalia’S Court Anymore?, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

Loper Bright Enterprises v. Raimondo has left administrative lawyers agog: Could the Supreme Court really reverse the “goliath” known as Chevron deference? For those who study the Court’s interpretive landscape more broadly, however, Chevron reversal may not be as unexpected as administrative lawyers believe. This Article will look at Loper Bright by linking three notable interpretive developments: the major questions doctrine, Chevron skepticism, and strict constructions of statutory text. These developments share the same risk: the Court is imposing a new “clarity tax” on both Congress and administrative agencies. Having said this, others’ grave worries about changes in Chevron are …

"Appropriate" Appropriations Challenges After Community Financial, Chad Squitieri

Scholarly Articles

The standard federal agency must come to Congress each year, hat in hand, and request another round of congressional funding. This annual appropriations process ensures that Congress maintains at least some influence over the vast array of rules and regulations that govern Americans' daily lives. Sure, Congress might have delegated broad authority to administrative agencies to develop national policy on Congress's behalf. But an agency reliant on annual appropriations is an agency with the financial incentive to exercise its delegated authority with an eye toward pleasing congressional appropriators. The annual appropriations process is therefore a sensible (even if insufficient) step …

Re/Descheduling Marijuana Through Administrative Action, Scott Bloomberg, Alexandra Harriman, Shane Pennington

Oklahoma Law Review

No abstract provided.

Democratic Accountability And Tax Enforcement, Joshua D. Blank, Leigh Osofsky

Faculty Publications

One of the most powerful charges that can be leveled against the IRS is that it is targeting taxpayers. Charges of political targeting have dogged the IRS for over a century, including in major controversies such as the alleged Tea Party auditing scandal in 2013. Commentators and scholars have long critiqued the IRS for focusing audit resources on some of the lowest-income Americans. And, most recently, a group of researchers estimated that the IRS audits Black taxpayers at a 2.9 to 4.7 times greater rate, as compared to non-Black taxpayers. In response, legislators demanded action, there was widespread public consternation, …

The Toll Paid When Adjudicators Err: Reforming Appellate Review Standards For Refugees, Charles Shane Ellison

Faculty Scholarship

Deep, variegated, and unresolved tensions run between and within the U.S. courts of appeals’ standard of review classifications of the five core elements of the refugee definition. Several circuits have taken note of their dissonant jurisprudence, calling for either en banc or Supreme Court intervention. While existing scholarship raises cogent criticisms of excessive factual deference in U.S. immigration adjudications, very little attention has been paid to how the fact-law divide regarding the refugee definition maps onto review standards in the appellate context. This dearth of scholarly consideration is accompanied by the reality that standards of review often decide cases where …

West Virginia V. Epa: Maybe A Big Deal, But Maybe Not, Michael Lewyn

Scholarly Works

In West Virginia v. EPA, the Supreme Court ruled that the Environmental Protection Agency (EPA) lacked the statutory authority to implement the Clean Power Plan, a regulation designed to reduce coal-fired power plant emissions by encouraging the use of non-coal energy sources. The Court’s decision was primarily grounded in the "major questions doctrine," which asserts that courts may reject agency actions that involve significant and consequential powers not reasonably inferred from Congressional intent, even if a statute is unclear. This decision raised concerns among commentators that it might severely restrict environmental regulations and the broader administrative state. However, the …

Chaney Step Zero: Judicial Review Of Fec Deadlock Dismissals, Natalie R. Schmidt

Scholarly Articles

Partisan polarization has infected our politics at levels not seen in decades. But what happens when the contamination spreads to the institutions responsible for regulating the political process itself? At the Federal Election Commission, nothing. Under the FEC’s governing statute, the Federal Election Campaign Act, any serious action the agency undertakes must be supported by a bipartisan supermajority of commissioners. When the six commissioners fail to reach such consensus—or “deadlock”—due to partisanship or otherwise, nothing happens at all: no investigations, no regulations, no enforcement of federal campaign finance laws. For the first few decades of the FEC’s existence, these deadlocks …

Administrative Virtues, Chad Squitieri

Scholarly Articles

Administrative law has developed to incorporate insights from two philosophical perspectives: deontology and consequentialism. This Article elucidates administrative law’s reliance on those two perspectives and proposes that administrative law further develop to incorporate insights from a third perspective—virtue ethics—which the legal community has, in large part, ignored.

Unlike deontology (which focuses on actions) and consequentialism (which focuses on actions’ consequences), virtue ethics focuses on actors. Thus, to begin incorporating virtue ethics’ insights into administrative law—a task that a wide range of scholars and jurists can embrace—this Article explores how a virtuous agency official might act in accordance with the virtues …

Barring Judicial Review, Laura E. Dolbow

Publications

Whether judicial review is available is one of the most hotly contested issues in administrative law. Recently, laws that prohibit judicial review have sparked debate in the Medicare, immigration, and patent contexts. These debates are continuing in challenges to the recently created Medicare price negotiation program. Yet despite debates about the removal of judicial review, little is known about how often, and in what contexts, Congress has expressly precluded review. This Article provides new insights about express preclusion by conducting an empirical study of the U.S. Code. It creates an original dataset of laws that expressly preclude judicial review of …

The Delegation Doctrine, Jonathan H. Adler

Faculty Publications

Despite the focus on the Court’s recent major questions cases, signs of an emergent delegation doctrine can also be found elsewhere. Most significantly, seeds of a delegation doctrine have been planted within the Court’s Chevron jurisprudence. The Court’s increased reluctance to grant Chevron deference to administrative agencies--and its insistence that courts first conclude that interpretive authority has been delegated before deferring to any agency interpretation—rests on the same core premise as the Court’s recent major questions doctrine decisions. It also suggests that the “new” major questions doctrine is not as new as it might seem, but rather a logical outgrowth …

Hidden In Plain Sight: Redefining The Field Of National Security, Aziza Ahmed

Faculty Scholarship

Throughout his campaign for presidency, Trump called for a ban on Muslims entering the United States. As President, he kept his word. Only days after he took office, the new administration released the first version of the Executive Order: Protecting the Nation From Foreign Terrorist Entry Into the United States. The first Executive Order, however, did not say the word Muslim. Instead, it listed only Muslim-majority countries as necessary for restrictions on entry. The Executive Order also trafficked in stereotypes about Muslims, such as the need to ban people who engage in acts of "bigotry or hatred," including honor killings. …