Administrative Law Commons^™

Progressive Textualism In Administrative Law, Kathryn E. Kovacs

Michigan Law Review Online

Nicholas Bagley’s article The Procedure Fetish is destined to be a classic. In it, Bagley systematically dismantles administrative law’s obsession with procedure. He decimates the arguments that procedure is necessary to legit-imize the administrative state and avoid agency capture. He nullifies the con-tention that administrative law is neutral by showing how proceduralism inhibits regulation and “favors a libertarian agenda over a progressive one.” Bagley urges progressives to abandon “gauzy claims about legitimacy and accountability” and approach procedure with skepticism.

The Procedure Fetish addresses the normative question of what adminis-trative law ought to require. Bagley writes about how progressives should solve …

Pepperdine University School Of Law Legal Summaries, Analise Nuxoll

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Slip Slidin' Away: The Erosion Of Apa Adjudication, William Funk

Journal of the National Association of Administrative Law Judiciary

Although the enactment of the Administrative Procedure Act (APA) was intended to establish a uniform set of procedures applicable to adjudications "required by statute to be determined on the record after opportunity for an agency hearing," agencies have long sought to avoid those procedures, and, in particular, Administrative Law Judges, by substituting informal, non-APA adjudications. Over time, the courts have accelerated this substitution through a misapplication of three Supreme Court opinions. This article describes the original understanding of the APA and how that original understanding has been eroded over the years. The article then asks whether this is a problem …

Executive Rulemaking And Democratic Legitimacy: "Reform" In The United States And The United Kingdom's Route To Brexit, Susan Rose-Ackerman

Chicago-Kent Law Review

Established public law principles are under strain from the prospect of Brexit in the United Kingdom and the Trump Administration in the United States. In the United Kingdom the Parliament is playing an increasingly important role in overseeing the Government, and the judiciary is beginning to support democratic accountability in executive policymaking. In the United States, possible statutory changes and the power of the president to reshape the public administration are of concern. Although in the United States the most draconian measures will likely die with the return of the House to Democratic Party control, they may remain on the …

Deregulatory Splintering, William W. Buzbee

Chicago-Kent Law Review

When new administrations arrive and consider agency policy changes, they often must choose what actions to take in court or through regulatory process. They may seek to stay an existing regulation, rescind, or possibly replace it. This article assesses strategic uses of, and responses to, agencies that pursue deregulatory rollbacks through a splintered series of steps. Through such splintering, agencies sometimes seek to avoid direct apples-to-apples comparison of the baseline regulation and new proposal, also often squelching opportunities for comment. They may seek to achieve a deregulatory outcome without the full process, disclosure, and reason-giving that ordinarily must accompanying any …

The Regulatory Accountability Act And The Future Of Apa Revision, Ronald M. Levin

Chicago-Kent Law Review

This article seeks to take stock of the Regulatory Accountability Act (RAA), a set of proposals to amend the Administrative Procedure Act (APA). House and Senate versions of the proposed Act have been pending in Congress since 2011, although the impending advent of Democratic control of the House may halt further progress on the bills in their present form. Some provisions in the RAA are desirable or at least supportable, because they would codify elements of current practice or make minor repairs to the APA. But other aspects of the bill are controversial and troubling. Among them are sections that …

Examining The Administrative Unworkability Of Final Agency Action Doctrine As Applied To The Native American Graves Protection And Repatriation Act, Adam Gerken

Michigan Journal of Environmental & Administrative Law

The application of the Administrative Procedure Act (“APA”) to the Native American Graves Protection and Repatriation Act (“NAGPRA”) creates unique practical and doctrinal results. When considering the application of the current law concerning judicial review of final agency action under the APA to NAGPRA, it is evident that the law is simultaneously arbitrary and unclear. In the Ninth Circuit’s holding in Navajo Nation v. U.S. Department of the Interior, the Court applied final agency action doctrine in a manner that was legally correct but administratively unworkable. The Court’s opinion contravenes both the reasoning behind the APA final agency action …

Slouching Towards Oblivion: Divergent Implementation And Potential Exodus Of Chevron Analysis In The Supreme Court's Interpretation Of Immigration Law, Amy L. Moore

Law Faculty Scholarship

In Slouching Towards Oblivion: Divergent Implementation and Potential Exodus of Chevron Analysis in the Supreme Court’s Interpretation of Immigration Law, Amy L. Moore examines the Supreme Court’s uneven application of Chevron deference in cases interpreting the Immigration and Nationality Act (INA). Mapping the Court’s immigration jurisprudence from 1984 through 2018, the Article documents a striking inconsistency: although the Court has repeatedly interpreted the INA, it has invoked Chevron in only a minority of those cases. Through a doctrinal survey of decisions such as Cardoza-Fonseca, Aguirre-Aguirre, and St. Cyr, the Article identifies recurring rationales for declining deference, …

The Winter Of Discontent: A Circumscribed Chevron, Nicholas R. Bednar

Mitchell Hamline Law Review

No abstract provided.

Billion Dollar Orphans: Tension Between The Legal Intent And Social Purpose Of The Orphan Drug Act, John Sheridan

Texas A&M Law Review

This Comment examines the extent to which Congress empowered the FDA to address the increase in petitions and the general accessibility of orphan drug remedies. Specifically, this Comment seeks to understand why the FDA’s interpretation of the purpose of the ODA seems to conflict with the statutory intent as interpreted by federal courts. This Comment considers a statute’s ultimate goal or social purpose to be the purpose of the statute, whereas the express mechanisms by which Congress seeks to bring about these goals is best understood as the statute’s intent. To understand the FDA and judiciary’s differing interpretations of the …

The Regulatory Accountability Act And The Future Of Apa Revision, Ronald M. Levin

Scholarship@WashULaw

This article seeks to take stock of the Regulatory Accountability Act (RAA), a set of proposals to amend the Administrative Procedure Act (APA). House and Senate versions of the proposed Act have been pending in Congress since 2011, although the impending advent of Democratic control of the House may halt further progress on the bills in their present form. Some provisions in the RAA are desirable or at least supportable, because they would codify elements of current practice or make minor repairs to the APA. But other aspects of the bill are controversial and troubling. Among them are sections that …

Agency Pragmatism In Addressing Law’S Failure: The Curious Case Of Federal “Deemed Approvals” Of Tribal-State Gaming Compacts, Kevin K. Washburn

University of Michigan Journal of Law Reform

In the Indian Gaming Regulatory Act of 1988 (IGRA), Congress imposed a decision-forcing mechanism on the Secretary of the Interior related to tribal-state compacts for Indian gaming. Congress authorized the Secretary to review such compacts and approve or disapprove each compact within forty-five days of submission. Under an unusual provision of law, however, if the Secretary fails to act within forty-five days, the compact is “deemed approved” by operation of law but only to the extent that it is lawful. In a curious development, this regime has been used in a different manner than Congress intended. Since the United States …

Buffalo Field Campaign V. Zinke, Hallee C. Kansman

Public Land & Resources Law Review

Despite years of litigation and legislation, the protection status of bison in and around Yellowstone National Park remains unsettled. Buffalo Field Campaign, a non-profit group, has spent decades spearheading the fight to list the species as either endangered or threatened under the Endangered Species Act. Buffalo Field Campaign v. Zinke tests the scope of agency directives and the strictness of the statutory language which guides agency actions.

Lucia Et Al. V. Securities And Exchange Commission: Opinion Of The Court, Elena Kagan

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Lucia Et Al. V. Securities And Exchange Commission: Brief Of Amicus Curiae The Forum Of United States Administrative Law Judges In Support Of Neither Party, Gerald Marvin Bober

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Introduction To Lucia Et Al. V. Securities And Exchange Commission, Selina Malherbe

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

In Defense Of A Little Judiciary: A Textual And Constitutional Foundation For Chevron, Terence J. Mccarrick Jr.

San Diego Law Review

This Article hopes to help fill that “important gap in the administrative law literature.” And it proceeds in three parts. Part II offers a brief history of the Chevron doctrine and its discontents. It traces the doctrine’s origin and scope and ends by articulating the textualist and originalist critique of Chevron described above. Part III grapples with that criticism and offers a textualist and originalist defense of Chevron. Section III.A describes the textual footing for Chevron in the APA and argues that Chevron—if not commanded by the APA—does not upset the role it envisions for courts. Section III.B describes the …

Reworking The Revolution: Treasury Rulemaking & Administrative Law, David Berke

Michigan Journal of Environmental & Administrative Law

How administrative law applies to tax rulemaking is an open and contested question. The resolution of this question has high stakes for the U.S. tax system. The paradigm is shifting away from so-called “tax exceptionalism”—where Treasury action is considered effectively exempt from the Administrative Procedure Act (the “APA”) and related administrative law doctrines. This paradigm-shift is salutary. However, currently prevailing anti-exceptionalist theory—an administrative framework for tax that is rapidly gaining credence within both the federal judiciary and the legal academy—threatens to destabilize the U.S. tax system. This formalistic approach to administrative law in tax rulemaking has the potential to invalidate …

Without Clear Rules, Ptab Practices May Run Afoul Of The Apa, Arpita Bhattacharyya, Rachel L. Emsley

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Reconstructing An Administrative Republic, Jeffrey A. Pojanowski

Michigan Law Review

Review of Jon D. Michaels, Constitutional Coup: Privatization's Threat to the American Republic.

Addressing Bias In Administrative Environmental Decisions, Robert R. Kuehn

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Shadow Of Free Enterprise: The Unconstitutionality Of The Securities & Exchange Commission’S Administrative Law Judges, Linda D. Jellum, Moses M. Tincher

Journal of the National Association of Administrative Law Judiciary

Six years ago, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), for the first time giving the Securities and Exchange Commission (SEC) the power to seek monetary penalties through its in-house adjudication. The SEC already had the power to seek such penalties in federal court. With the Dodd-Frank Act, the SEC’s enforcement division could now choose between an adjudication before an SEC Administrative Law Judge (ALJ) or a civil action before an Article III judge. With this new choice, the SEC realized a significant home-court advantage. For example, in 2014, the SEC’s enforcement division prevailed …

Interpreting An Unamendable Text, Thomas W. Merrill

Vanderbilt Law Review

Many of the most important legal texts in the United States are highly unamendable. This applies not only to the Constitution, which has not been amended in over forty years, but also to many framework statutes, like the Administrative Procedure Act and the Sherman Antitrust Act. The problem is becoming increasingly severe, as political polarization makes amendment of these texts even more unlikely. This Article considers how interpreters should respond to highly unamendable texts. Unamendable texts have a number of pathologies, such as excluding the people and their representatives from any direct participation in legal change. They also pose an …

Tax As Part Of A Broken Budget: Good Taxes Are Good Cause Enough, Stephanie Mcmahon

Faculty Articles and Other Publications

The federal budget is a myth. Despite being a myth, Congress uses the budget to limit its choices by linking its revenue-raising and spending powers under a federal debt ceiling. Through its self-imposed limits, Congress puts tremendous pressure on how it calculates its budget, and that calculation generally assumes any tax provisions will raise revenue when the law becomes effective. However, many tax provisions require additional direction to ensure they operate as the budgetary process expects. That task falls to the Treasury Department and the Internal Revenue Service (IRS) as a bureau of the Department. Consequently, limiting the production of …

Clowning Around With Final Agency Action, Beau J. Baumann, Greg Mina

Cornell Journal of Law and Public Policy

While Chevron and Auer deference dominate the administrative law literature, another doctrine—the final agency action requirement—has been perverted by the lower federal courts. Several circuits have developed an undergrowth of formalistic rules that tighten the Supreme Court’s standard, as it was laid out in Bennett v. Spear. This development ignores the Court’s decades-old refrain that the final agency action requirement should be flexible. Unfortunately, this development comes at the worst possible time. The interconnectedness of federal and state agencies has led to a sort of division of labor. Data collection, designations, and enforcement are increasingly divided across different agencies. Because …

Chevron Step Two's Domain, Kent H. Barnett, Christopher J. Walker

Scholarly Works

An increasing number of judges, policymakers, and scholars have advocated eliminating or narrowing Chevron deference—a two-step inquiry under which courts defer to federal agencies’ reasonable interpretations of ambiguous statutes the agencies administer. Much of the debate centers on either Chevron’s domain (i.e., when Chevron should apply at all) or how courts ascertain statutory ambiguity at Chevron’s first step. Largely lost in this debate on constraining agency discretion is the role of Chevron’s second step: whether the agency’s resolution of a statutory ambiguity is reasonable. Drawing on the most comprehensive study of Chevron in the circuit courts, this Essay explores how …

Fail To Comment At Your Own Risk: Does Issue Exhaustion Have A Place In Judicial Review Of Rules, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

Lubbers discusses whether issue exhaustion have a place in judicial review of rules.

Designing The Decider, Emily S. Bremer

Journal Articles

The Administrative Procedure Act (APA) contains several provisions designed to ensure that presiding officials in so-called formal adjudications are able to make fair, well-informed, independent decisions. But these provisions do not apply to the vast majority of federal adjudicatory hearings. In this world of adjudication outside the APA, agencies enjoy broad procedural discretion, including substantial freedom to “design the decider.” This Article defines the scope of this discretion and explores how various agencies have exercised it. The discussion is enriched by examples drawn from an expansive new database of federal adjudicatory procedures. The Article argues that, although agency discretion to …

Dunsmuir: A View From South Of The Border, Jeffrey Pojanowski

Journal Articles

First, I would like to thank Leonid and Paul for inviting me to contribute to this symposium. Reading up on Dunsmuir and its legacy has expanded my horizons on administrative law and introduced me to great Canadian legal scholarship. My sense is that Canadian administrative law scholars are engaged in important conversations with their counterparts in Australia, New Zealand, and the U.K., whereas U.S. scholars, per usual, are doing their own thing. For reasons I discuss below, that separation may make some sense. But I am also convinced that further conversation between these wings of Anglo-American public law is important, …

Chevron In The Circuit Courts, Kent Barnett, Christopher J. Walker

Michigan Law Review

This Article presents findings from the most comprehensive empirical study to date on how the federal courts of appeals have applied Chevrondeference— the doctrine under which courts defer to a federal agency’s reasonable interpretation of an ambiguous statute that it administers. Based on 1,558 agency interpretations the circuit courts reviewed from 2003 through 2013 (where they cited Chevron), we found that the circuit courts overall upheld 71% of interpretations and applied Chevrondeference 77% of the time. But there was nearly a twenty-five-percentage-point difference in agency-win rates when the circuit courts applied Chevrondeference than when they did …