Administrative Law Commons^™

Reconstituting A Constitution, And A Republic: The Architecture Of Authoritarian Rule, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

A constitution can be remade without tearing it down, or even changing a single word. It is done by law.

“The judicial power is vested in one Supreme Court and in such inferior courts as Congress may establish,” whose “province and duty” it is to “say what the law is.” U.S. Const. Art. III §1; Marbury v. Madison, 5 U.S. 1 (Cranch) 137 (1803). It is not the power to remake the Constitution that grants it.

The Supreme Court is turning the inherited powers that hold power to law into instruments of its own aggrandizement. It is taking authority from …

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 …

Differing Judicial Perspectives: A Look Into The Evolution And Constitutionality Of The United States' Administrative State, Buchanan Albert Cook

Honors Theses

Over time the United States’ administrative state has evolved into something that is quite unrecognizable from its inception in the early years of the nation. This essay will provide an account of the founding of the United States Constitution while recognizing the intent and design of the framers of the Constitution. In juxtapositioning this account with the current state of administrative agencies, questions over the constitutionality of such agencies will be posed. To answer these questions, an overview of the history of administrative agencies in the United States will be given alongside accompanying and significant Supreme Court Cases. This overview …

Administrative Law: Approaches To Delegation, Maine Law Review

Maine Law Review

As do most state courts, the Maine Supreme Judicial Court purports to require that legislative delegations of power to administrative agencies be accompanied by legislatively articulated "primary standards" sufficient to prohibit arbitrary exercise of administrative discretion. The requirement is rooted in the non-delegation doctrine, once the principal stumbling-block to the creation of an effective administrative arm of government. Originally a liberalization of the non-delegation rule, the primary standards test can become an unwarranted restraint on legislative discretion, particularly when invoked to nullify delegations necessarily broad in scope. Often, the very reason behind a legislature's choice of administrative means to effectuate …

Chevron Was Not, And Cannot Be, Overruled: The Dullness Of Loper Bright, Edward L. Rubin

Vanderbilt Law School Faculty Publications

As expected, the Supreme Court declared, in Loper Bright Enterprises. v. Raimondo,' that "Chevron is overruled." The Court was notably vague about the principle that would replace it, declaring that "courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority," but providing little guidance about how this crucial task should be performed. This is an obvious defect in an opinion with innumerable defects, but the problems with the Court's decision go well beyond its specific flaws. The Court did not understand the decision that it claimed to overrule. Chevron is not simply a …

The Common Threats Of Artificial Intelligence And Privatization, Landyn Rookard

Texas A&M Law Review

Administrative agencies’ growing use of automated decisionmaking tools poses threats to core democratic values, such as agency flexibility, expertise, fairness, transparency, and accountability. But decades of privatization have wrought similar, lasting harms to the United States’ public institutions. This Article argues that the thoughtful criticisms and prescriptions from the burgeoning literature on the government’s use of artificial intelligence should be used to strengthen the scrutiny accorded to privatization.

Specifically, this Article challenges the perception that automated decisionmaking poses a greater threat to public values than privatization. Indeed, the two share several characteristics and goals. These include, for example, a fixation …

Special Issues Facing People Who Use Drugs And How Sensitive Lawyers Can Help: Three Case Studies From Rutgers Law Associate, Andrew J. Rothman

Touro Law Review

No abstract provided.

Emergency Oversight, Catherine Baylin Duryea

Faculty Publications

This Article examines one of the most pressing questions in administrative law: How much judicial oversight should administrative agencies face during an emergency? This issue was particularly salient during the COVID epidemic, but it is not new. The Second World War saw a significant expansion and consolidation of the power of administrative agencies as well as experimentation with the appropriate oversight role for courts. This Article analyzes one such experiment: judicial oversight of agencies implementing wartime anti-inflationary measures, i.e., price controls and rationing. During the war, Congress created a specialized court, the Emergency Court of Appeals (ECA), to hear disputes …

Group Homes For The Mentally Retarded In Maine: Legislative Intent And Administrative Process, James C. Hunt

Maine Law Review

Historically, mentally retarded citizens of Maine have been confined to Pineland Center, the state's principal institution for the mentally retarded. In 1975 a class action suit, Wuori v. Zitnay, was filed in federal district court on behalf of "involuntarily confined" Pineland residents and "conditionally released" residents "in need of care . . . in a humane and healthful . . . environment." Three years later agencies and officials of the State of Maine entered into a consent judgment which laid down a "comprehensive plan designed to bring about speedy and meaningful relief" to the plaintiff class. The relief granted was …

Federal Agency Nonacquiescence: Defining And Enforcing Constitutional Limitations On Bad Faith Agency Adjudication, Christopher C. Taintor

Maine Law Review

A leading authority in the field of administrative law has posited that "[t]he availability of judicial review is the necessary condition, psychologically if not logically, of a system of administrative power which purports to be legitimate, or legally valid." There is no question that judicial review is an imperfect check on agency action: it is susceptible to criticism for, on the one hand, the excessive limitations on its exercise, and on the other for the arguably inferior level of understanding from which courts must approach matters uniquely within the competence of particular administrators. Nonetheless, the courts remain "the acknowledged architects …

The Demise Of Deference — And The Rise Of Delegation To Interpret?, Thomas W. Merrill

Faculty Scholarship

In the concluding days of its recently completed Term, in the midst of headline-grabbing decisions about presidential immunity, gun rights, and abortion, the Supreme Court rendered a momentous decision overruling the Chevron doctrine. The decision in Loper Bright Enterprises v. Raimondo was not a surprise. After treating the Chevron doctrine as a settled principle of administrative law for more than three decades, the Court stopped applying it in 2016. Several Justices authored individual opinions urging that it was unconstitutional, violated the Administrative Procedure Act (APA), was prone to manipulation by judges, created systematic bias in favor of the government, and …

Enhancing Public Access To Agency Law, Bernard Bell, Cary Coglianese, Michael Herz, Margaret Kwoka, Orly Lobel

Articles

A just, democratic society governed by the rule of law requires that the law be available, not hidden. This principle extends to legal materials produced by administrative agencies, all of which should be made widely accessible to the public. Federal agencies in the United States do disclose online many legal documents—sometimes voluntarily, sometimes in compliance with statutory requirements. But the scope and consistency of these disclosures leaves considerable room for improvement. After conducting a year-long study for the Administrative Conference of the United States, we identified seventeen possible statutory amendments that would improve proactive online disclosure of agency legal materials. …

Responding To Alternatives, Daniel T. Deacon

Michigan Law Review

This Article is the first to comprehensively analyze administrative agencies’ obligation to respond to alternatives to their chosen course of action. The obligation has been around at least since the Supreme Court’s decision in Motor Vehicle Manufacturers Ass’n of the United States, Inc. v. State Farm, and it has mattered in important cases. Most recently, the Supreme Court invoked the obligation as the primary ground on which to invalidate the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program. The obligation to respond to alternatives is also frequently invoked in the lower courts and in the …

The Administrative State, Financial Regulation, And The Case For Commissions, Kathryn Judge, Dan Awrey

Faculty Scholarship

Administrative law is under attack, with the Supreme Court reviving, expanding, and creating doctrines that limit the authority and autonomy wielded by regulatory agencies. This anti-administrative turn is particularly alarming for financial regulation, which already faces enormous challenges stemming from the dynamism of modern finance, its growing complexity, and fundamental contestability. Yet that does not mean that defending the current regime is the optimal response. The complexity and dynamism of modern finance also undercut the efficacy of established administrative procedures. And the panoply of financial regulators with unclear and overlapping jurisdictional bounds only adds to the challenge. Both these procedural …

Arbitrary And Capricious X Artificial Intelligence, Zoe Niesel

Faculty Articles

The "arbitrary and capricious" review standard has been interpreted to govern the judicial review of agency factual findings that are produced through informal rulemaking or informal adjudication. In contrast, agency factual findings that are produced through formal rulemaking or adjudication will be reviewed under the Administrative Procedure Act, Section 706(2)(E), which states that such findings can be set aside if they are "unsupported by substantial evidence." While the standards technically vary-factual findings that are the product of informal procedures will warrant arbitrary and capricious review, while factual findings that are the product of formal procedures will warrant substantial evidence review …

Improving The Affirmative Disclosure Of Agency Legal Materials, Bernard W. Bell, Cary Coglianese, Michael Herz, Margaret B. Kwoka, Orly Lobel

Michigan Journal of Environmental & Administrative Law

It is axiomatic that in a democratic society the law must be broadly accessible. Administrative agencies produce a plethora of materials imposing legal obligations on commercial or individual actors in the private sector. Other materials bind the agencies themselves in ways that affect the rights or interests of private parties. Still other materials provide the public with information about how agencies interpret and apply the statutes and rules they administer, or how agencies seek to deploy their discretion or take other actions that can affect private individuals or organizations. This Article focuses on improving the public availability of all of …

Against The Chenery Ii "Doctrine", Gary S. Lawson, Joseph Postell

Notre Dame Law Review

The Supreme Court’s 1947 decision in SEC v. Chenery Corp. ( Chenery II) is generally taken as blanket authorization for agencies to make law through either adju-dication or rulemaking if their organic statutes permit both modes. We think this is an overreading of the doctrine. The decision in Chenery II need not be read so broadly, and there are good reasons to read it more narrowly. The most important reason is that agency lawmaking through adjudication presents serious constitutional concerns involving due process of law and subdelegation of legislative power, at least if the agency action deprives people of life, …

Administration As Democratic Trustee Representation, Katharine Jackson

Faculty Articles and Other Publications

The “folk” theory of democracy that typically justifies the administrative state cannot help but lead to a discourse of constraint. If agency action is only legitimate when it mechanically applies the will of the voters as transposed by Congress through statutes, then the norms guiding that action will inevitably restrain agency discretion. As a result, attempts to establish the democratic credentials of the administrative state ironically obstruct the application of collective power. But this “folk” theory of democracy is bad theory. It is empirically incredible and, alarmingly, facilitates dangerous populist politics. Political theory instead suggests that a theory of democratic …

The Public Trust: Administrative Legitimacy And Democratic Lawmaking, Katharine Jackson

Faculty Articles and Other Publications

This Article argues that recent United States Supreme Court decisions invalidating agency policymaking rely on a normatively unattractive and empirically mistaken notion of democratic popular sovereignty. Namely, they rely upon a transmission belt model that runs like this: democracy is vindicated by first translating and aggregating voter preferences through elections. Then, the popular will is transposed by members of Congress into the statute books. Finally, the popular will (now codified), is applied mechanically by administrative agencies who should merely “fill in the details” using their neutral, technical expertise. So long as statutes lay down sufficiently “intelligible principle[s]” that permit their …

Bring On The Chicken And Hot Oil: Reviving The Nondelegation Doctrine For Congressional Delegations To The President, Loren Jacobson

St. John's Law Review

(Excerpt)

The so-called “nondelegation doctrine” posits that Congress may not transfer its legislative power to another branch of government, and yet Congress delegates its authority routinely not only to the President, but to a whole host of other entities it has created and that are located in the executive branch, including executive branch agencies, independent agencies, commissions, and sometimes even private parties. Recognizing that “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives,” the Supreme Court of the United States …

Biden V. State Of Texas: Brief Of Administrative Law Professors As Amici Curiae In Support Of Petitioners, Nina Mendelson

Appellate Briefs

Amici curiae listed in the Appendix are professors are professors of administrative law. Amici have an interest in the construction and application of the Administrative Procedure Act and in the role that federal courts and agencies play in advancing or hindering reasoned policymaking, democratic accountability, and good governance. Amici express no view about the wisdom of the Migrant Protection Protocols (“MPP”). They write to address why, as a matter of fundamental administrative law doctrine and principle, the Department of Homeland Security’s second action terminating MPP should be accorded legal effect and the injunction requiring the Department to implement that program …

Optimizing Whistleblowing, Usha Rodrigues

Scholarly Works

Whistleblowers have exposed misconduct in settings ranging from public health to national security. Whistleblowing thus consistently plays a vital role in safeguarding society. But how much whistleblowing is optimal? And how many meritless claims should we tolerate to reach that optimum? Surprisingly, legislators and scholars have overlooked these essential questions, a neglect that has resulted in undertheorized, stab-in-the-dark whistleblower regimes, risking both overdeterrence and underdeterrence.

This Article confronts the question of optimal whistleblowing in the context of financial fraud. Design choices, which play out along two axes, have profound effects on the successful implementation of whistleblowing policy. One axis varies …

Delegating Climate Authorities, Mark P. Nevitt

Faculty Articles

The science is clear: the United States and the world must take dramatic action to address climate change or face irreversible, catastrophic planetary harm. Within the U.S.—the world’s largest historic emitter of greenhouse gas emissions—this will require passing new legislation or turning to existing statutes and authorities to address the climate crisis. Doing so implicates existing and prospective delegations of legislative authority to a large swath of administrative agencies. Yet congressional climate decision-making delegations to any executive branch agency must not dismiss the newly resurgent nondelegation doctrine. Described by some scholars as the “most dangerous idea in American law,” the …

Agency Genesis And The Energy Transition, Sharon B. Jacobs

Publications

Commentators and policymakers frequently propose new government agencies in response to novel or intractable problems. New agencies can refocus public attention on the problems they regulate. They can attract new talent and bypass calcified or captured channels. But they are also costly, and there is no guarantee that they will be more successful than their predecessors.

This Article examines agency genesis at the state level. In the process, it expands recent thinking about the administrative separation of powers to the states. At the federal level, setting up agency rivalries within the executive branch can be an effective tool for mitigating …

Administrative Adjudication And Adjudicators, Jack M. Beermann

Faculty Scholarship

The appointment, removal, supervision and allocation of cases to Administrative Law Judges (ALJs) and other non-Article III adjudicators in the United States federal government continues to create vexing legal issues for courts and commentators. This article is an effort to address all of these issues together, to facilitate a holistic understanding of the place of non-Article III adjudicators in the federal government. The appointment question revolves around whether non-Article III adjudicators are Officers of the United States, which most are. There are two issues surrounding the removal of non-Article III adjudicators. First, for reasons sounding in due process concerns, adjudicators …

Regulatory Monitors: Policing Firms In The Compliance Era, Rory Van Loo

Faculty Scholarship

Like police officers patrolling the streets for crime, the front line for most large business regulators — Environmental Protection Agency (EPA) engineers, Consumer Financial Protection Bureau (CFPB) examiners, and Nuclear Regulatory Commission (NRC) inspectors, among others — decide when and how to enforce the law. These regulatory monitors guard against toxic air, financial ruin, and deadly explosions. Yet whereas scholars devote considerable attention to police officers in criminal law enforcement, they have paid limited attention to the structural role of regulatory monitors in civil law enforcement. This Article is the first to chronicle the statutory rise of regulatory monitors and …

Both Sides Of The Rock: Justice Gorsuch And The Seminole Rock Deference Doctrine, Kevin O. Leske

Michigan Journal of Environmental & Administrative Law

Despite being early in his tenure on the U.S. Supreme Court, Justice Neil Gorsuch has already made his presence known. His October 16, 2017 statement respecting the denial of certiorari in Scenic America, Inc. v. Department of Transportation garnered significant attention within the legal community. Joined by Chief Justice John Roberts and Justice Samuel Alito, Justice Gorsuch questioned whether the Court’s bedrock 2-part test from Chevron, U.S.A. v. NRDC—whereby courts must defer to an agency’s reasonable interpretation of an ambiguous statutory term—should apply in the case.

Justice Gorsuch’s criticism of the Chevron doctrine was not a surprise. In the …

The Role Of The Courts In Guarding Against Privatization Of Important Public Environmental Resources, Melissa K. Scanlan

Michigan Journal of Environmental & Administrative Law

Drinking water, beaches, a livable climate, clean air, forests, fisheries, and parks are all commons, shared by many users with diffuse and overlapping interests. These public natural resources are susceptible to depletion, overuse, erosion, and extinction; and they are under increasing pressures to become privatized. The Public Trust Doctrine provides a legal basis to guard against privatizing important public resources or commons. As such, it is a critical doctrine to counter the ever-increasing enclosure and privatization of the commons as well as ensure government trustees protect current and future generations. This Article considers separation of powers and statutory interpretation in …

Epistemic Peerhood In The Law, R. George Wright

St. John's Law Review

(Excerpt)

We thus have, at this point, a preliminary sense of the importance of some possible choices in deciding whose voices and participation should be taken seriously, as that of our epistemic peers, in deciding legal questions. This Article addresses these preliminary understandings in several legal contexts. We can do so most profitably on the basis of a better, fuller, and more specific understanding of the crucial idea of epistemic peerhood. It is thus the idea of epistemic peerhood itself that this Article addresses immediately below.

Ignoring Administrative Decisions Through Settlement: A Holistic Approach, Vincent Escoto

Journal of the National Association of Administrative Law Judiciary

No abstract provided.