Administrative Law Commons^™

Presidential Noncompliance And Judicial Response: A Two-Branch Dialectic, Seth Waxman

Washington Law Review

No abstract provided.

Between Seminole Rock And A Hard(Er) Place: A New(Er) Approach To Agency Deference, Kevin O. Leske

Catholic University Law Review

In Loper Bright Enterprises v. Raimondo, the United States Supreme Court in 2024 overruled Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., ending the Chevron doctrine’s reign as the applicable rule for courts to use in reviewing agency interpretations of their authorizing statute. Although Chevron’s demise was no great surprise, the Court’s decision leaves myriad questions that may take decades to answer. The most pressing question is: what is now the precise standard that courts must apply to determine statutory meaning in these cases? But there is a related question that is equally important to our ever-changing …

Finding The Major Questions Doctrine, Chad Squitieri

Pepperdine Law Review

The major questions doctrine has been invoked primarily in the rulemaking context, where it requires agencies to identify particularly clear statutory authority before promulgating rules of “major” importance. Some scholars have suggested that the doctrine is a tool that should be limited to agency actions that are purportedly “legislative” in nature (e.g., rulemakings)—meaning the doctrine would not apply in other contexts, such as agency adjudications and enforce-ment actions that may not be similarly “legislative.” This Essay responds by arguing that the major questions doctrine is best understood as a limit on executive authority—meaning the doctrine could apply across a wider …

The Deregulation Of Cancer, Daniel G. Aaron

Utah Law Faculty Scholarship

Fifty years ago, the U.S. embarked on a radical new path. Under pressure from the environmental movement, Congress passed an array of statutes aimed at regulating carcinogens out of our world. This regulatory experiment sprawled from air and water to food and consumer products.

Legal scholars have paid scant attention to this wave of cancer regulation despite its size and importance and the public’s apparent interest in avoiding carcinogens. But there is a growing literature finding flaws with individual regimes within the framework, such as the Clean Air Act, the Toxic Substances Control Act, and the Tobacco Control Act. In …

Taking Legality Seriously: What The Major Questions Doctrine Is — And Isn't, Andrea Scoseria Katz, Ofra Bloch

Scholarship@WashULaw

The Major Questions Doctrine (MQD), a controversial recent innovation of the Roberts Court that applies stricter scrutiny to “major” actions taken by federal agencies, has faced criticism for being atextual, unprincipled, and nakedly ideological. But this critique misses the fact that the doctrine has near-exact analogues in many other legal systems, where it is an established tool for reining in executive overreach. This Article argues that, while the MQD reflects valid rule-of-law concerns, as applied, it lacks theoretical clarity, consistency and limits. More importantly, the Court itself lacks a theory of what the MQD is. We provide an answer grounded …

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 …

Remedies For Unreasonable Administrative Action After Vavilov, Kate Glover Berger

Articles & Book Chapters

This article comments on Pepa v. Canada (Citizenship and Immigration), arguing that it departs from the Supreme Court's previous guidance on remedies in an unprincipled manner. The article outlines the remedial framework established in Canada (Minister of Citizenship and Immigration) v. Vavilov, traces its development over the past five years, discusses key departures from the general rule of remittal, and highlights the principles these departures reflect. It then examines the approach to remedies adopted in Pepa. This assessment shows that the Pepa majority's invocation of the "single reasonable interpretation" exception to the general rule of remittal departs from the core …

Improving Regulatory Notice, Joshua Ulan Galperin, E. Donald Elliott

Elisabeth Haub School of Law Faculty Publications

Effective notice of law is the cornerstone of any legal system, and yet many federal administrative agencies do not give small businesses, NGOs, and interested citizens notice of the vast amount of new or modified law they produce. They merely publish the text in the Federal Register, which works tolerably well for larger enterprises but not their smaller competitors and citizens' groups. Despite these facts, few scholars have explored how agencies provide notice of the law. Even fewer have proposed ways that agencies could improve the methods they use for giving more effective notice of significant regulatory changes and thereby …

Litigating Loper Bright: Interpretive Challenges And Solutions For The Post-Chevron Era, Eric R. Bolinder

West Virginia Law Review

This Article arrives at a critical juncture in Administrative Law and comprehensively answers two burning questions about Loper Bright Enterprises v. Raimondo, the case that overturned Chevron deference. First, what did Loper Bright change about review of agency action? Second, how should lower courts implement the decision? This Article engages in a first-of-its-kind, exhaustive review of the major circuit court decisions citing Loper Bright and analyzes how influential judges, scholars, and justices have characterized the impact of the decision. The Article defines what role Skidmore “deference” and the major questions doctrine should play in judicial review—while seriously questioning the long-term …

What Is The Distribution Of National Historical Parks?, Randall K. Johnson

Faculty Works

In an increasingly polarized nation, which no longer can reach any consensus about what is meant by the term “common good,” it might be wise to extend additional protections to national monuments from executive branch interference. But prior to doing so, the U.S. Congress may want to undertake some additional research work. Such research could build on the existing charge of the National Park Service as well as other interested parties. By doing so, Congress gains insight into whether and how this federal legislature should expand protections for national historical parks.

My article explains, at least in part, how Congress …

Guardrails For Discretionary Powers: A Case Comment On The State Of Tamil Nadu V The Governor Of Tamil Nadu And Another, Pranav Verma

National Law School Journal

This Case Comment argues that by prescribing timelines for the president and the governors to grant or withhold assent to bills in The State of Tamil Nadu v the Governor of Tamil Nadu, decided in April 2025, the Supreme Court did not exceed its constitutional role, as argued by some critics. Instead, it applied established administrative law principles—relevant considerations, natural justice, and absence of mala fides—to the specific power of granting or withholding assent to bills. These principles have been long used to guide the other powers of the president, the governors, and the speaker/chairman. The court thereby reinforced …

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 …

Machinists Preemption In The New Administrative Law, Andrew J. Ziaja

Seattle University Law Review

This Article assesses Machinists preemption—a labor-specific form of implied field preemption—while freshly considering implications both for and of new developments in administrative law. The radical transformation of administrative law in the Supreme Court, particularly its newfound emphasis on clear-statement rules, provides opportunities to reconsider the Machinists rationale. Aligning with scholars who have called to question the doctrine’s “ossifying” influence on labor and employment policy, it argues that the modern-day version of Machinists preemption clashes with the Supreme Court’s newly constrained view of delegated power and its differing conceptions of the major questions doctrine.

On the other hand, Machinists preemption might …

James Baldwin And What U.S. Governments Owe Every American, Randall K. Johnson

Faculty Works

This book review looks at the life, work and impact of James Baldwin, a famous writer and civil rights activist that was born one hundred (100) years ago. It does so, for one of the first times in the field of law, by examining Baldwin’s influence on the legal system. The book review carries out its work by identifying Baldwin’s impacts upon U.S. law: before, during and after his public service career. In the process, this book review describes how governments can build on Baldwin's writings and advocacy work.

The End Of Fda Exceptionalism? Dissecting Deference To The Fda In Drug Disputes, Anjali Deshmukh

Cardozo Law Review

On April 7, 2023, a federal judge issued a nationwide stay on the United States Food and Drug Administration (FDA) approval of the abortifacient medication mifepristone. It was instantly a landmark case, decried as the first time in over one-hundred years that a federal court nullified an FDA drug approval. A few hours later, a second federal district court enjoined FDA restrictions on mifepristone. Two federal courts substantively evaluating FDA drug approval data in one day is unprecedented. It begs the question: will courts overturn FDA drug approvals again?

Conventional wisdom says no. Abortion exceptionalism, the trend of legislatures and …

Loper Bright’S Deregulatory Synergies, Renee Farmer, Daniel G. Aaron

Utah Law Faculty Scholarship

For over 40 years, Chevron U.S.A. v. National Resources Defense Council stood as a keystone of administrative law. It infused agencies with the discretion to leverage the edges of statutory language and granted them the security that day-to-day agency actions would survive judicial review. Although Chevron’s demise in Loper Bright Enterprises v. Raimondo elicited rebuke from many legal scholars, it struck some as unsurprising, unimportant, or unconcerning, whether due to the narrowing of Chevron over time, the Supreme Court’s disuse of it in recent years, or the belief that its holding flew in the face of the Administrative Procedure Act. …

Administrative Forum Shopping, Amy L. Stein

UF Law Faculty Publications

Allowing private parties in litigation to stack the deck in their favor through forum shopping is standard fare in the United States. But not everyone realizes that public legislators engage in a similar exercise when they stack the deck in one party’s favor through “jurisdiction-stripping” or “jurisdiction-channeling” provisions. Congress can strip federal courts of all or some of its jurisdiction, channel jurisdiction over a particular class of cases into one particular court, and even strip the U.S. Supreme Court of its appellate jurisdiction. Understandably, this last category has received the most attention, as scholars are drawn to the penultimate conflict …

Beyond Jarkesy: Rethinking The Role Of Administrative Law Judges In Sec Administrative Proceedings, Mark T. Uyeda, Jaime Marinaro

Fordham Journal of Corporate & Financial Law

No abstract provided.

The Immigration Subpoena Power, Lindsay Nash

Articles

For over a century, the federal government has wielded the immigration subpoena power in darkness, forcing private individuals, subfederal governments, and others to help it detain and deport. This vast administrative power has remained opaque even to those who receive these subpoenas and invisible to those it affects most. Indeed, the very people targeted by these subpoenas often don’t know they exist, much less how they facilitate arrest and deportation. For these reasons—and more—this power has escaped the legal battles raging over other immigration enforcement tactics and the scrutiny of journalists, scholars, and courts. Thus, as state- and locality-held information …

The Limits Of Generative Ai In Administrative Law Research, Susan Azyndar

Journal Articles

The author recounts an administrative law classroom experience using generative AI. She considers the complexities of administrative law, AI training, professional responsibility, and traditional resources.