Administrative Law Commons^™

The Administrative Law Of Mccarthyism, Nicholas Handler

Faculty Scholarship

This Article recovers the largely overlooked legal and administrative history of the federal loyalty-security program, and argues that it played a formative role in the development of modern civil service protections and administrative law. During the McCarthy era, the United States Civil Service Commission (CSC), under pressure from Congress, implemented a sweeping loyalty program aimed at rooting out purportedly disloyal federal employees. Though often remembered as a moment of political overreach and civil liberties violations, this Article shows that the loyalty program simultaneously catalyzed a surprising expansion in procedural rights for government workers—both through internal reforms initiated by the CSC …

The Vanishing Enforcer: Consumer Protection In An Era Of Dual Retrenchment, Alisher Juzgenbayev

Northwestern University Law Review

Recent developments, including reductions in the federal workforce, effective suspension of certain enforcement activities, and attempted centralization of independent agency rulemaking in the White House, have significantly weakened administrative agencies. This administrative retrenchment is concerning as private enforcement of a number of consumer protection statutes has been simultaneously curtailed through the Supreme Court’s decisions in Spokeo, Inc. v. Robins and TransUnion LLC v. Ramirez, which dramatically narrowed plaintiffs’ standing. These decisions rely in part on a vision of strong executive authority, positing that broad private standing conflicts with an Article II framework where a politically accountable President faithfully implements laws …

Selective Service And The Separation Of Powers, Jeremy K. Kessler

Faculty Scholarship

The legal history of the U.S. military draft is a case study in creative statutory interpretation. Throughout the twentieth century, this interpretive creativity tended both to expand draft registrants’ substantive and procedural rights, and to recalibrate the roles played by Congress, the courts, and various executive branch factions in the governance of tens of millions of young men. Today’s Military Selective Service Act (“MSSA”) reads much like the law that governed the land when the country last went to war with conscripts during the 1950s and 1960s. But between U.S. entry into the Korean War and its withdrawal from Vietnam, …

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 …

U.S. Administrative Law: A Casebook (6th Ed.), Jud Mathews

Faculty Scholarship

The number of administrative law texts is vast. The approach of this one, now in its fifth edition, is simple. It is: (1) to focus on the richest and most canonical cases; (2) to provide more extensive extracts of them than most casebooks; and (3) to keep the notes to a bare minimum. Updated through October 2025, the book contains a number of significant decisions from recent Supreme Court terms, as well as foundational classics that many contemporary casebooks cut, and much in between.

From Myers To Slaughter: A Brief Theory Of The Constitutionalization Of Secondary Sources, Dana Neacsu, Paul D. Callister

Faculty Works

For more than two centuries, American constitutional adjudication has relied upon secondary sources. Yet constitutional theory has almost entirely ignored them. Originalism debates constitutional text. Living constitutionalism debates constitutional evolution. Theories of precedent debate judicial authority. None asks a more fundamental question: What role do secondary sources play in constitutional adjudication? This Article argues that the answer has fundamentally changed in the last 100 of years. Chief Justice William Howard Taft's opinion in Myers v. United States (1926) marked a constitutional revolution by transforming secondary authorities from explanatory materials into evidence of constitutional continuity. Exactly one century later, Chief Justice …

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.

All The President's Men: Congressional Appointment Restrictions At The Founding, Nicholas Holmes, Eric Walker

Michigan Law Review

The appointment power is exercised through a unique unicameral process. The Founders emphasized its distinctiveness from our system’s general bicameral legislative process, yet the power has largely been overlooked by scholars and jurists. This Note reveals that appointment discretion is the crucial, but understudied, flipside of the removal-power coin and is essential for presidential administration. Constitutional text, structure, and history indicate that there is a line beyond which congressional restrictions on who is eligible to hold federal office exceed Congress’s delegated powers and infringe on the president’s nomination and appointment power under Article II. The conventional wisdom on this line, …

Whither Leviathan? The Seepage Of Constitutional Law Into Public-Private Arbitration In The United States, Peter B. Rutledge

Scholarly Works

The chapter analyses how constitutional law influences private-public arbitration in the United States. Its central thesis is that constitutional law exerts a powerful indirect influence on arbitration law. While the US Constitution does not directly regulate arbitration, its underlying norms—such as separation of powers, federalism, and individual rights—impact arbitration law indirectly. The chapter explores the ways in which these constitutional principles influence public-private arbitration through statutory interpretation, treaty design, and private protocols reflecting constitutional norms. This pattern of influence manifests itself in public arbitration (i.e. arbitration involving states or state-owned entities) just as it does in private arbitration. Highlighting how …

Deference Or Preference: Analyzing The Treatment Of Chevron U.S.A., Inc. V. Nrdc As A Precedent At The Supreme Court, Allison Dehart

Senior Theses

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. is one of the most cited Supreme Court cases in history, with over 18,000 citations in federal courts alone (Merrill, 2012). It has reached doctrinal status and was widely considered a vital precedent, one that guided the fields of environmental and administrative law. However, in June of 2024, the Supreme Court released their opinion in Loper Bright Enterprises v. Raimondo, which overturned Chevron. With the ubiquity of Chevron in US Courts, this decision caused widespread confusion and worry over what would replace the precedent. In an era where environmental …

Constraining The Executive Branch: Delegation, Agency Independence, And Congressional Design Of Judicial Review, Jennifer L. Selin, Pamela J. Clouser Mccann

Northwestern University Law Review

While scholarship examining the relationship between Congress, federal agencies, and the judiciary reveals variation in the statutory details that affects administrative and judicial decision-making, few studies explore the extent to which congressional delegation decisions balance both the substantive and procedural independence of agencies against the possibility of the federal judiciary’s review of administrative action.

This Article enhances scholarly understanding of delegation by providing a qualitative, theoretical, and empirical account of the circumstances under which Congress manipulates federal agency exposure to the federal judiciary. Ironically, combined with statutory provisions dictating agency independence, increasing an agency’s exposure to unelected federal judges can …

Statutory Liquidation, Daniel Deacon

Articles

When might practice by the political branches settle the meaning of legal text? That question has mostly been taken up in the constitutional setting, with one strand of scholarship taking inspiration from Madison's statement in Federalist No. 37, that "{a}ll new laws ... are considered as more or less obscure and equivocal until their meaning be liquidated and ascertained by a series ef particular discussions and aqjudications." The prospect that post-enactment practice might liquidate the meaning of statutory text has been comparatively underexamined. That's not surprising. Under modern textualism, post-enactment considerations would seem to have little place. And under Chevron …

A Conversation With Justice Brett Kavanaugh, Brett M. Kavanaugh, J. Joel Alicea

Catholic University Law Review

On Thursday, September 26th, 2024, the Center for the Constitution and the Catholic Intellectual Tradition at The Catholic University of America hosted a conversation between Justice Brett M. Kavanaugh and Professor J. Joel Alicea. This was the inaugural event of the new Center. The conversation covered topics such as constitutional interpretation, the separation of powers, religious liberty, and the Catholic intellectual tradition. This is a transcript of the conversation, and the text appears substantially as it was delivered. The video of the event may be found at this link: https://www.youtube.com/watch?v=2sKvSwzkmqo.

Rays Of Hope For The Administrative State, Peter L. Strauss

Faculty Scholarship

The assault on Chevron has not yet been resolved, but it is next to impossible to believe that the sensible Justices of the Court will go any further than to reaffirm that deciding questions of the scope of agency authority is exclusively for judicial resolution (though perhaps with Skidmore-like attention to the views of the agency, so much more familiar with its statutes as a whole). This was the position clearly taken by the Court in 1940, in United States v. American Trucking Ass’ns., and to go beyond it into decision, rather than review, of agency judgments would …

Implied Consent In Administrative Adjudication, Grace Moore

Washington and Lee Law Review Online

Article III of the Constitution mandates that judges exercising the federal judicial power receive life tenure and that their pay not be diminished. Nonetheless, certain forms of adjudication have always taken place outside of Article III—in state courts, military tribunals, territorial courts, and administrative tribunals. Administrative law judges, employed by various federal administrative agencies, decide thousands of cases each year. A vast majority of the cases they decide deal with public rights, which generally include claims involving federal statutory rights or cases in which the federal government is a party. With litigant consent, however, the Supreme Court has upheld administrative …

The Major Questions Doctrine At The Boundaries Of Interpretive Law, Daniel E. Walters

Faculty Scholarship

The Supreme Court’s apparent transformation of the major questions doctrine into a clear statement rule demanding clear congressional authorization for “major” agency actions has already had, and will continue to have, wide-ranging impacts on American public law. Not the least of these is the impact it will have on the enterprise of statutory interpretation. Indeed, while it is easy to focus on the policy repercussions of a newly constrained Congress and newly hamstrung administrative state, this Article argues that equally important is the novel precedent that is set in this particular formulation of a clear statement rule, which stands almost …

The Right To Remove In Agency Adjudication, Christopher J. Walker, David Zaring

Articles

In SEC v. Jarkesy, the Supreme Court will decide the constitutional future of agency adjudication, especially in the context of agency enforcement actions and the imposition of civil penalties. If the Court agrees with the Fifth Circuit on any of its three independent reasons for unconstitutionality, agency enforcement and adjudication schemes across the federal regulatory state will be severely disrupted, in ways that are detrimental to both the regulator and the regulated. In this Essay, we propose a path forward: In certain circumstances, the regulated party should have a right to remove an enforcement action from an in-house agency adjudication …

Populist Constitutionalism, Anya Bernstein, Glen Staszewski

Faculty Scholarship

A Supreme Court majority has expressed hostility to administrative agencies. Yet, as this Article explains, agencies provide the primary site in our government for pluralistic contestation among disparate policy views. A political vision we identify as agonistic republicanism—a convergence among deliberative democrats, republican theorists, and agonism supporters—places such multilateral deliberation and debate among differing social groups at the foundation of democracy. A contrary vision, authoritarian populism, imagines a single leader embodying the will of a unified people with little use for the institutional mediation of divergent perspectives. This view, prominent in politics, enters legal theory through the rhetoric of judicial …

Movement On Removal: An Emerging Consensus On The First Congress, Jed Shugerman

Faculty Scholarship

What did the “Decision of 1789” decide about presidential removal power, if anything? It turns out that an emerging consensus of scholars agrees that there was not much consensus in the First Congress.

Two more questions follow: Is the “unitary executive theory” based on originalism, and if so, is originalism a reliable method of interpretation based on historical evidence?

The unitary executive theory posits that a president has exclusive and “indefeasible” executive powers (i.e., powers beyond congressional and judicial checks and balances). This panel was an opportunity for unitary executive theorists and their critics to debate recent historical research questioning …

Alexander Hamilton And Administrative Law: How America’S First Great Public Administrator Informs And Challenges Our Understanding Of Contemporary Administrative Law, Rodger D. Citron

Scholarly Works

Alexander Hamilton’s recognition and reputation have soared since the premiere of “Hamilton,” Lin-Manuel Miranda’s musical about him in 2015. For lawyers, Hamilton’s work on the Federalist Papers and service as the nation’s first Treasury Secretary likely stand out more than other aspects of his extraordinary life. Politics and economics were fundamental concerns addressed by the Framers in a number of ways, including what we now refer to as administrative law—the laws and procedures that guide government departments (or, as we say today, agencies). Indeed, “Hamilton” reminds us that questions of administration and administrative law have been with us since the …

Expert Knowledge, Democratic Accountability, And The Unitary Executive, Barry Sullivan

Faculty Publications & Other Works

This essay, which was prepared for the Fordham Law Review's February 2023 symposium on the Unitary Executive, addresses the question whether the Constitution requires that the President have absolute control over the information that those charged with executive authority may provide to Congress and the public, regardless of how technical or essential to democratic governance that information may be, and notwithstanding the existence of legislation to the contrary. For example, does the Constitution require that the President must be free to substitute their judgment for that of an expert official charged by Congress with making determinations about the likely path …

Appropriations, The Budget, And Public Debt Transparency: The Fiscal Panorama, Gillian E. Metzger, Anna Gelpern, Alissa Ardito Ashcroft, Erika Lunder, Karla Vasquez-Suarez

Faculty Scholarship

Appropriations, budget, and public debt law lurk in the recesses of public law. Every now and again, in a blaze of glory and spilled ink, they emerge under the guise of a constitutional issue. Should a constitutional question arise, usually separation of powers, amid a political stalemate, then an extended shutdown or debt ceiling drama steal the spotlight. After a last-minute compromise or, rarely, a judicial ruling, the green eyeshades return. Money, finance, public spending – whether mandatory or discretionary – exert little charm over lawyers, who went to law school to avoid arithmetic. But the federal government pays for …

Amicus Brief In Sec V. Jarkesy On Original Public Meaning Of Article Ii & Presidential Removal, Jed Handelsman Shugerman

Faculty Scholarship

In holding that the SEC’s administrative law judges’ protections against removal were unconstitutional, the Fifth Circuit extended Free Enterprise Fund v. PCAOB, 561 U.S. 447 (2010), and Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020). Those precedents were based on an incomplete historical record. Subsequent historical research shows that the Founding generation never understood Article II to grant the President an indefeasible removal power.

To be sure, this evidence does not suggest Congress should have unlimited power to protect any executive office or delegate removal to itself. Rather, the bottom line is that the evidence of original public …

Mutually Intelligible Principles?, Andrew J. Ziaja

Pace Law Review

Are the nondelegation, major questions, and political question doctrines mutually intelligible? This article asks whether there is more than superficial resemblance between the nondelegation, major questions, and political question concepts in Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825), an early nondelegation case that has become focal in recent nondelegation and major questions scholarship and jurisprudence. I argue that the nondelegation and political question doctrines do interact conceptually in Wayman, though not as current proponents of the nondelegation doctrine on the Supreme Court seem to understand it. The major questions doctrine by contrast conscripts the nondelegation …

Is It Time To Bury Barry? Why An Old Change At The Legislature Requires A New Look At Washington's Nondelegation Doctrine, Daniel A. Himebaugh

Washington Law Review Online

Fifty years ago, the Supreme Court of Washington adopted a relaxed version of the nondelegation doctrine in a case called Barry and Barry v. Department of Motor Vehicles. The Barry rule, which only loosely restricts the delegation of policy-making power from the Legislature to other bodies, is now widely applied in Washington State. However, the Barry Court’s reasons for adjusting the nondelegation doctrine were based on an outdated understanding of the Legislature, especially its regular session schedule. While the Legislature’s regular sessions have changed since 1972—becoming longer and more frequent due to constitutional amendment—the Court has not considered how …

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 …

Health Choice Or Health Coercion? The Osha Emergency Temporary Standard Covid-19 Vaccination Mandates: Ax Or Vax, Savannah Snyder

Helm's School of Government Conference - 2021-2024

No abstract provided.

Decoding Nondelegation After Gundy: What The Experience In State Courts Tells Us About What To Expect When We're Expecting, Daniel E. Walters

Faculty Scholarship

The nondelegation doctrine theoretically limits Congress’s ability to delegate legislative powers to the executive agencies that make up the modern administrative state. Yet, in practice, the U.S. Supreme Court has, since the New Deal, shied away from enforcing any limits on congressional delegation. That may change in the near future. In Gundy v. United States, the Court narrowly upheld a delegation, and a dissent signaled deep doubts about the Court’s longstanding “intelligible principle” standard and offered a new framework to replace it. Subsequent events strongly suggest that the Court is poised to move in the direction contemplated by the dissent …

Violence And Nondelegation, Jacob D. Charles, Darrell A. H. Miller

Faculty Scholarship

Debates over delegation are experiencing a renaissance. These debates presuppose an initial distribution of constitutional authority between actors that cannot be redistributed, or that can be redistributed only according to some clear ex ante set of rules. Nondelegation in this sense often arises in debates about separation of powers and intergovernmental delegation, although scholars have begun applying the concept to delegations to private corporations and other private actors. The public delegation doctrine restricts one branch of government from transferring its constitutional authority to another branch, while the private delegation doctrine limits transfer of government power to private entities. In this …

Don’T “Estop” Me Now: Estoppel, Government Contract Law, And Sovereign Immunity If Congress Retroactively Repeals Public Service Loan Forgiveness, Michael J. Cole

Lewis & Clark Law Review

This Article discusses whether Direct Loan borrowers can obtain recourse against the federal government using either promissory or equitable estoppel theories if Congress retroactively repeals the Public Service Loan Forgiveness (“PSLF”) program. The Article addresses various hurdles, including sovereign immunity and the Sovereign Acts Doctrine, which the borrowers would encounter at litigation. It concludes that, despite likely overcoming these hurdles, in many cases, the plaintiff-borrowers’ government contract law claims would likely still fail to win on their merits. The Article also contends that most, if not all, equitable estoppel claims would likely fail before a court. The Article then offers …