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Articles 61 - 90 of 136
Full-Text Articles in Administrative Law
1930s Redux: The Administrative State Under Seige, Gillian E. Metzger
1930s Redux: The Administrative State Under Seige, Gillian E. Metzger
Faculty Scholarship
Eighty years on, we are seeing a resurgence of the antiregulatory and antigovernment forces that lost the battle of the New Deal. President Trump's administration has proclaimed the "deconstruction of the administrative state" to be one of its main objectives. Early Trump executive actions quickly delivered on this pledge, with a wide array of antiregulatory actions and a budget proposing to slash many agencies' funding. Invoking the long-dormant Congressional Review Act (CRA), the Republican-controlled Congress has eagerly repealed numerous regulations promulgated late in the Obama Administration. Other major legislative and regulatory repeals are pending, and bills that would impose the …
Re-Thinking Executive Control Of And Accountability For The Agency, Benedict Sheehy, Don Feaver
Re-Thinking Executive Control Of And Accountability For The Agency, Benedict Sheehy, Don Feaver
Osgoode Hall Law Journal
The organization of many Western governments has undergone dramatic structural and procedural changes over the past century. A large portion of public administration previously done by departments within a more centralized structure of government has been shifted to administrative units, often referred to as “agencies” that fall outside the constitutional core—an “agencified” model. This article investigates the historical contexts and legal developments associated with these changes and illuminates how “agencification” has altered the balance between executive control powers and executive accountability obligations. It examines how the organizational changes have been addressed in both the responsible government models of the United …
The Judicial Role In Constraining Presidential Non-Enforcement Discretion: The Virtues Of An Apa Approach, Daniel E. Walters
The Judicial Role In Constraining Presidential Non-Enforcement Discretion: The Virtues Of An Apa Approach, Daniel E. Walters
Faculty Scholarship
Scholars, lawyers, and, indeed, the public at large increasingly worry about what purposive presidential inaction in enforcing statutory programs means for the rule of law and how such discretionary inaction can fit within a constitutional structure that compels Presidents to "take Care that the Laws be faithfully executed." Yet those who have recognized the problem have been hesitant to assign a role for the court in policing the constitutional limits they articulate, mostly because of the strain on judicial capacity that any formulation of Take Care Clause review would cause. In this Article, I argue that courts still can and …
A Rose By Any Other Name: Florida's Return To Consolidated-Tomoka, Jacqueline Van Laningham
A Rose By Any Other Name: Florida's Return To Consolidated-Tomoka, Jacqueline Van Laningham
Florida State University Law Review
No abstract provided.
Standing For (And Up To) Separation Of Powers, Kent H. Barnett
Standing For (And Up To) Separation Of Powers, Kent H. Barnett
Scholarly Works
The U.S. Constitution requires federal agencies to comply with separation-of-powers (or structural) safeguards, such as by obtaining valid appointments, exercising certain limited powers, and being sufficiently subject to the President’s control. Who can best protect these safeguards? A growing number of scholars call for allowing only the political branches — Congress and the President — to defend them. These scholars would limit or end judicial review because private judicial challenges are aberrant to justiciability doctrine and lead courts to meddle in minor matters that rarely effect regulatory outcomes.
This Article defends the right of private parties to assert justiciable structural …
Politics And Agencies In The Administrative State: The U.S. Case, Peter L. Strauss
Politics And Agencies In The Administrative State: The U.S. Case, Peter L. Strauss
Faculty Scholarship
The pending American presidential election, culminating a period of extreme political partisanship in our national government generally, gives point to an essay on politics and agencies in the American regulatory state. In our two-party system, it has often been the case in recent times, including the last six years, that the President comes from one of our two major political parties and one or both houses of Congress are controlled by the other. All American agencies (including, in the American case, the so-called independent regulatory bodies) are associated with the President in the executive branch, yet dependent on the Senate …
Auer As Administrative Common Law, Gillian E. Metzger
Auer As Administrative Common Law, Gillian E. Metzger
Faculty Scholarship
To some, Auer deference stands apart from the rest of administrative law. On the one hand, Auer is distinguished from other forms of deference as uniquely constitutionally problematic, because it grants agencies deference for their own interpretations of their own regulations. This, according to Justice Scalia (accepting an argument raised by his former law clerk, John Manning), violates “fundamental principles of separation of powers” by “permit[ing] the person who promulgates a law to interpret it as well.” On the other, Auer deference is also seen as uniquely at odds with the Administrative Procedure Act. Thus, Scalia criticized Auer not simply …
The Oira Transparency Problem, Peter L. Strauss
The Oira Transparency Problem, Peter L. Strauss
Faculty Scholarship
This article critiques the opacity of the Office of Information and Regulatory Affairs (OIRA), arguing that its centralized review process allows former officials to exploit loopholes in post-employment ethics statutes and asserts that this dynamic undermines regulatory integrity and democratic accountability by allowing privileged access to influence high-stakes federal rulemakings.
Inside Regulatory Interpretation: A Research Note, Christopher J. Walker
Inside Regulatory Interpretation: A Research Note, Christopher J. Walker
Michigan Law Review First Impressions
We now live in a regulatory world, where the bulk of federal lawmaking takes place at the bureaucratic level. Gone are the days when statutes and common law predominated. Instead, federal agencies—through rulemaking, adjudication, and other regulatory action—have arguably become the primary lawmakers, with Congress delegating to its bureaucratic agents vast swaths of lawmaking power, the President attempting to exercise some control over this massive regulatory apparatus, and courts struggling to constrain agency lawmaking within statutory and constitutional bounds. This story is not new. Over two decades ago, for instance, Professor Lawson lamented the rise of the administrative state and …
The United States Antiboycott Law And Other Export Controls, Cecil Hunt
The United States Antiboycott Law And Other Export Controls, Cecil Hunt
Georgia Journal of International & Comparative Law
No abstract provided.
Agency Adjudication And Judicial Nondelegation: An Article Iii Canon, Mila Sohoni
Agency Adjudication And Judicial Nondelegation: An Article Iii Canon, Mila Sohoni
Northwestern University Law Review
The rules governing judicial review of adjudication by federal agencies are insensitive to a critical separation of powers principle. Article III jurisprudence requires different treatment of agency adjudication depending on whether the agency is adjudicating a “private right” or a “public right.” When agencies adjudicate private rights, review of the agency adjudication must be available to an Article III court on a direct appellate basis. In contrast, Article III jurisprudence does not require review to an Article III court on a direct appellate basis of agency adjudications of purely public rights. That means that federal courts reviewing agency adjudications of …
Executive Action On Immigration: Constitutional Or Direct Conflict?, Todd Curtin
Executive Action On Immigration: Constitutional Or Direct Conflict?, Todd Curtin
Florida A & M University Law Review
On November 20, 2014, the White House released a press statement notifying viewers that President Obama would do everything within his executive powers to solve the problems surrounding the immigration system. The White House made it clear that the President would be acting with legal authority in taking these steps. This paper addresses whether or not the Obama Administration did, in fact, act with legal authority by initiating the following steps using his executive authority: “cracking down on illegal immigration at the border; deporting felons, not families; and accountability through criminal background checks and taxes.” President Obama, acting through Secretary …
A Taxonomy Of Discretion: Refining The Legality Debate About Obama’S Executive Actions On Immigration, Michael Kagan
A Taxonomy Of Discretion: Refining The Legality Debate About Obama’S Executive Actions On Immigration, Michael Kagan
Scholarly Works
Broad executive action has been the Obama Administration’s signature contribution to American immigration policy, setting off a furious debate about whether the President has acted outside his constitutional powers. But the legal debate about the scope of the President’s authority to change immigration policy has not fully recognized what is actually innovative about the Obama policies, and thus has not focused on those areas where he has taken executive discretion into uncharted territory. This essay aims to add new focus to the debate about Pres. Obama’s executive actions by defining five different types of presidential discretion: Congressionally-authorized discretion, non-enforcement discretion, …
Appointments, Innovation, And The Judicial-Political Divide, Gillian E. Metzger
Appointments, Innovation, And The Judicial-Political Divide, Gillian E. Metzger
Faculty Scholarship
The federal appointments process is having its proverbial day in the sun. The appointment and removal of federal officers figured centrally in the Supreme Court's two major recent separation-of-powers decisions, Free Enterprise Fund v. Public Company Accounting Oversight Board and National Labor Relations Board v. Noel Canning. The appointments process has featured even more prominently in the political sphere, figuring in a number of congressional-presidential confrontations. Such simultaneous top billing in the judicial and political spheres is hardly coincidental. After all, it was President Obama's use of the Recess Appointments Clause in response to pro forma sessions that triggered …
Delegation, Accommodation, And The Permeability Of Constitutional And Ordinary Law, Gillian E. Metzger
Delegation, Accommodation, And The Permeability Of Constitutional And Ordinary Law, Gillian E. Metzger
Faculty Scholarship
To some, the very idea of the constitutional law of the administrative state is an oxymoron. On this view, core features of the national administrative state — broad delegations and the combination of legislative, executive, and judicial power within administrative agencies, particularly agencies that are headed by unelected executive officials only removable on narrow grounds — are fundamentally at odds with both constitutional separation of powers principles and due process. To others, no such conflict between contemporary administrative governance and the Constitution exists, and assertions of the administrative state’s unconstitutionality rest on basic misunderstandings of what separation of powers and …
Resolving The Alj Quandary, Kent Barnett
Resolving The Alj Quandary, Kent Barnett
Journal of the National Association of Administrative Law Judiciary
Three competing constitutional and practical concerns surround federal administrative law judges (“ALJs”), who preside over all formal adjudications within the executive branch. First, if ALJs are “inferior Officers” (not mere employees), as five current Supreme Court Justices have suggested, the current method of selecting many ALJs likely violates the Appointments Clause. Second, a recent U.S. Supreme Court decision reserved the question whether the statutory protections that prevent ALJs from being fired at will impermissibly impinge upon the President’s supervisory power under Article II. Third, these same protections from removal may, on the other hand, be too limited to satisfy impartiality …
A Pragmatic Republic, If You Can Keep It, William R. Sherman
A Pragmatic Republic, If You Can Keep It, William R. Sherman
Michigan Law Review
These things we know to be true: Our modern administrative state is a leviathan unimaginable by the Founders. It stands on thin constitutional ice, on cracks between the executive, legislative, and judicial branches. It burdens and entangles state and local governments in schemes that threaten federalism. And it presents an irresolvable dilemma regarding democratic accountability and political independence. We know these things to be true because these precepts animate some of the most significant cases and public law scholarship of our time. Underlying our examination of administrative agencies is an assumption that the problems they present would have been bizarre …
To The Victor Goes The Toil -- Remedies For Regulated Parties In Separation-Of-Powers Litigation, Kent H. Barnett
To The Victor Goes The Toil -- Remedies For Regulated Parties In Separation-Of-Powers Litigation, Kent H. Barnett
Scholarly Works
The U.S. Constitution imposes three key limits on the design of federal agencies. It constrains how agency officers are appointed, the extent of their independence from the President, and the range of issues that they can decide. Scholars have trumpeted the importance of these safeguards with soaring rhetoric. And the Supreme Court has permitted regulated parties to vindicate these safeguards through implied private rights of action under the Constitution. Regulated parties, for their part, have been successfully challenging agency structure with increased frequency. At the same time, regulated parties, courts, and scholars have largely ignored the practical question of “structural …
From Sovereignty And Process To Administration And Politics: The Afterlife Of American Federalism, Jessica Bulman-Pozen
From Sovereignty And Process To Administration And Politics: The Afterlife Of American Federalism, Jessica Bulman-Pozen
Faculty Scholarship
Announcing the death of dual federalism, Edward Corwin asked whether the states could be “saved as the vital cells that they have been heretofore of democratic sentiment, impulse, and action.” The federalism literature has largely answered in the affirmative. Unwilling to abandon dual federalism’s commitment to state autonomy and distinctive interests, scholars have proposed new channels for protecting these forms of state-federal separation. Yet today state and federal governance are more integrated than separate. States act as co-administrators and co-legislatures in federal statutory schemes; they carry out federal law alongside the executive branch and draft the law together with Congress. …
Agency Enforcement Of Spending Clause Statutes: A Defense Of The Funding Cut-Off, Eloise Pasachoff
Agency Enforcement Of Spending Clause Statutes: A Defense Of The Funding Cut-Off, Eloise Pasachoff
Georgetown Law Faculty Publications and Other Works
This article contends that federal agencies ought more frequently to use the threat of cutting off funds to state and local grantees that are not adequately complying with the terms of a grant statute. Scholars tend to offer four arguments to explain—and often to justify—agencies’ longstanding reluctance to engage in funding cut-offs: first, that funding cut-offs will hurt the grant program’s beneficiaries and so will undermine the agency’s ultimate goals; second, that federalism concerns counsel against federal agencies’ taking funds away from state and local grantees; third, that agencies are neither designed nor motivated to pursue funding cut-offs; and fourth, …
Florida's Aljs: Maintaining A Different Balance , F. Scott Boyd
Florida's Aljs: Maintaining A Different Balance , F. Scott Boyd
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Agency Exercise Of Legislative Power And Alj Veto Authority, Daniel Manry
Agency Exercise Of Legislative Power And Alj Veto Authority, Daniel Manry
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
The Question Of Constitutionality: How Separate Are The Powers? The Administrative And Social Ramifications Of Lockyer V. City And County Of San Francisco, Kristin Ecklund
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
When Administrative Law Judges Rule The World: Wooley V. State Farm - Does A Denial Of Agency-Initiated Judicial Review Of Alj Final Orders Violate The Constitutional Doctrine Of Separation Of Powers?, April Rolen-Ogden
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Resolving The Alj Quandary, Kent H. Barnett
Resolving The Alj Quandary, Kent H. Barnett
Scholarly Works
Three competing constitutional and practical concerns surround federal administrative law judges (“ALJs”), who preside over all formal adjudications within the executive branch. First, if ALJs are “inferior Officers” (not mere employees), as five current Supreme Court Justices have suggested, the current method of selecting many ALJs likely violates the Appointments Clause. Second, a recent U.S. Supreme Court decision reserved the question whether the statutory protections that prevent ALJs from being fired at will impermissibly impinge upon the President’s supervisory power under Article II. Third, these same protections from removal may, on the other hand, be too limited to satisfy impartiality …
The Confrontation Of The Legislative And Executive Branches: An Examination Of The Constitutional Balance Of Powers And The Role Of The Attorney General, Robert E. Palmer
The Confrontation Of The Legislative And Executive Branches: An Examination Of The Constitutional Balance Of Powers And The Role Of The Attorney General, Robert E. Palmer
Pepperdine Law Review
The United States Constitution created an internally dependent tripartite governing scheme which relied upon a carefully drafted system of checks and balances as a means of self-regulation. Recent years have seen increased conflicts between the separate branches, the most recent of which is the occasion for this article. The article traces the rise and fall of the power exercised by the various branches and then focuses on the recent confrontation between Congress and the executive branch concerning the actions of the Environmental Protection Agency and the subsequent resignation of Anne McGill Burford. Of particular interest to this inquiry is the …
Between Seminole Rock And A Hard Place: A New Approach To Agency Deference, Kevin O. Leske
Between Seminole Rock And A Hard Place: A New Approach To Agency Deference, Kevin O. Leske
Faculty Scholarship
No abstract provided.
The Auditor For The Auditors' Auditor: Accounting For The Unitary Executive In Free Enterprise Fund V. Public Company Accounting Oversight Board, Kelsey Elizabeth Stapler
The Auditor For The Auditors' Auditor: Accounting For The Unitary Executive In Free Enterprise Fund V. Public Company Accounting Oversight Board, Kelsey Elizabeth Stapler
Pepperdine Law Review
No abstract provided.
The Consumer Financial Protection Bureau's Appointment With Trouble, Kent H. Barnett
The Consumer Financial Protection Bureau's Appointment With Trouble, Kent H. Barnett
Scholarly Works
This article considers whether the Consumer Financial Protection Bureau Director’s appointment of the Bureau’s Deputy Director comports with the Appointments Clause. The Dodd-Frank Wall Street Reform and Consumer Protection Act established the Bureau in July 2010, as well as the offices of the Bureau’s Director and Deputy Director, to coordinate the regulation and enforcement of federal consumer-financial-protection laws. Under that act, the Director appoints the Deputy Director. The Appointments Clause permits “Heads of Departments” to appoint inferior officers like the Deputy Director. But it is unclear if the Bureau is a “department” and thus if the Director is a department …
Presidential Control Of The Elite "Non-Agency", Kimberly L. Wehle
Presidential Control Of The Elite "Non-Agency", Kimberly L. Wehle
All Faculty Scholarship
This article examines the constitutionality of legislation creating a new form of independent agency – in effect, a “non-agency” agency residing in the no-man’s land between Articles I and II of the Constitution. In the Sarbanes-Oxley Act, Congress established the Public Company Accounting Oversight Board (“PCAOB” or “Board”) and endowed it with massive governmental powers while insulating it from traditional mechanisms for ensuring accountability. Congress deemed the PCAOB not an agency, rendered it substantially immune from judicial review, empowered Board members to set their own salaries and budget, and gave the embattled Securities and Exchange Commission – not the President …