Administrative Law Commons^™

Dean Melanie Leslie’S Office Hors On The Trump Administration's Immigration Enforcement Tactics, Melanie Leslie, Lindsay Nash

2025 Event Invitations

Join Dean Leslie and Professor Lindsay Nash to discuss the immigration enforcement tactics of President Trump’s second term. Topics will include the intersection between immigration enforcement and political speech, the administration’s expansion of summary removal processes, the administration’s use of the Alien Enemies Act, and the administration’s recission of longstanding rules placing important constraints on immigration enforcement. The two will also answer questions raised by the student attendees.

Disagreement And Historical Argument Or How Not To Think About Removal, Andrea Scoseria Katz, Noah A. Rosenblum, Jane Manners

University of Michigan Journal of Law Reform

Scholars have debated the reach of the President’s power to remove government officers for over one hundred years. This old fight is now suddenly urgent as President Trump asserts far-reaching powers to control the federal bureaucracy and the Supreme Court transforms Unitary Executive Theory into caselaw. Yet the scholarly case for an indefeasible presidential removal power has never been weaker.

This Essay continues an ongoing conversation about how to read some critical early republic evidence about removal. It briefly recapitulates the stakes of the disagreement before offering in-depth analyses of developments in Pennsylvania removal practice, including a reading of the …

Streamlining Wildlife Regulation, Robert L. Fischman

Michigan Journal of Environmental & Administrative Law

A recent burst of revisions in the bedrock regulations governing projects that may adversely affect wildlife represents a generational shift in policy. Streamlining federal decision -making drove much of this reform. Streamlining offers a path to address climate change without abandoning a longstanding commitment to wildlife conservation. The conservation community recognizes the need to build new infrastructure to reduce the rate of climate change through air emissions. The most urgent priority is decarbonizing the electrical ~rid through renewable energy generation and a better transmission network. Adaptation to the "new abnormal" of climate-driven environmental disruption demands federal approvals for a host …

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.

Science And Politics In Public Health Regulation, Samuel R. Bagenstos

University of Michigan Journal of Law Reform

Much of American public discourse takes for granted a distinction between science and politics. People describe and understand that distinction in contradictory ways, however. And those contradictions themselves underscore how closely entwined science and politics actually are.

Rituals Of Reluctance: How Loper Bright Further Obscures Civil Rights’ Place In The Modern Administrative State, Cameron K. Obioha

Mercer Law Review

Loper Bright Enterprises v. Raimondo (Loper Bright)marks the end of the Chevron doctrine and the abandonment of nearly forty years of precedent. Despite providing extensive reasoning regarding why eliminating an anchor of administrative law is the culmination of long‑awaited progress, no member of the Supreme Court of the United States elected to opine on a crucial implication of this historic decision. The court did not address how, with reinstated dominion over “every open issue” in regulatory law, it will reconcile the ever‑widening chasm between civil rights policy and the modern administrative state when such challenges inevitably arise.

Ghosting The Crowd, Andrew A. Schwartz

Washington and Lee Law Review

Crowdfunded companies are legally bound to provide investors with an annual report—but most don’t. This “ghosting of the crowd” violates federal securities laws and raises the risk of opportunism by entrepreneurs, who are more prone to misbehave if no one is watching. Most ominously, it threatens the very viability of the investment crowdfunding market, as investors who are ghosted by one company are less likely to invest in another.

This Article reports on the embarrassing record of noncompliance with the annual report rule imposed by the Jumpstart Our Business Startups (“JOBS”) Act of 2012 and Regulation Crowdfunding, and proposes a …

A State Supreme Court Justice’S Take On Delegation And Deference, Justice R. Patrick Dewine

University of Michigan Journal of Law Reform

There’s not a lot of talk about state administrative law. Never mind that much of the administrative law that happens in this country happens at the state level. Or that state regulation affects citizens and businesses in much the same way as federal regulation. As Chief Judge Sutton observes, “[o]ur obsession with federal law inclines us to notice changes in administrative law most of all through decisions of the U.S. Supreme Court, the Hubble Telescope for assessing American law.”

Introduction: The Future Of Agency Independence Symposium Christopher J. Walker, Christopher J. Walker

University of Michigan Journal of Law Reform

On the Friday after the election last November, the student editors and I convened scholars from across the country at the University of Michigan Law School to discuss the future of agency independence. The goal was to center our discussion on the traditional unitary executive debate and then look beyond statutory restrictions on the President’s removal power to explore other contours of agency independence in modern regulatory governance. Those included the role of scientific expertise and politics in agency decisionmaking, the decisional independence of agency adjudicators, and the importance of a professionalized civil service. When we planned the symposium, we …

Four Ways To Deconstruct Regulation And Undermine Democracy In The States, Glen Staszewski

William & Mary Law Review

A few years before the Supreme Court formally overruled Chevron, anti-administrative activists successfully prohibited judicial deference to reasonable exercises of interpretive discretion by regulatory agencies in a handful of receptive states. State governments’ treatment of this issue is likely to generate even more attention in Loper Bright’s wake. This Article presents novel case studies of four different ways in which state governments have prohibited deference to state agencies by state courts: (1) judicial decisions in Mississippi and Ohio, (2) a constitutional amendment proposed by an appointed commission and adopted pursuant to the initiative process in Florida, (3) statutes …

Meat, The Future: The Role Of Regulators In The Lab-Grown Revolution, Joseph B. Davault, Michael S. Sinha

All Faculty Scholarship

The United States is one of the largest consumers of meat globally. The production of meat contributes substantially to climate change due to the levels of greenhouse gasses emitted and the amount of land, water, feed, and other natural resources required to raise animals used for meat. Traditional meat production is another major source for the emergence of zoonotic diseases and antimicrobial-resistant pathogens. Nevertheless, Americans consume more meat now than at any time in the nation’s history.

Advocates for policy change aimed at addressing the risks associated with meat production have typically focused on reducing meat consumption, alternatives to meat, …

Tomorrow’S Climate Law, Today, Daniel E. Walters

Faculty Scholarship

The prospects for domestic legislation or international treaties that would require governments, businesses, and individuals to stop emitting the greenhouse gases that cause global climate change are particularly bleak these days. Even as the United States has recently passed its most ambitious climate legislation to date in the Inflation Reduction Act and related “green industrial policy” legislation, these successes were ultimately a compromise with politicians who refused to consider more direct controls on emissions. Assuming they survive the second Trump Administration, the green subsidies and nudges contained in these laws, coupled with a groundswell of private environmental governance, will do …

Capital Formation, The Sec, And Accredited Investors, Neal F. Newman, Lawrence J. Trautman, Brian Elzweig

Faculty Scholarship

Protecting the investing public, while simultaneously facilitating the efficient flow of capital needed by all new and growing businesses continues as a primary responsibility of the U.S. Securities and Exchange Commission (SEC). Enhancing the capital formation process is a necessary step in the creation of jobs and growth of any economy. Central to the SEC’s regulatory schematic is the proposition that some particularly sophisticated and wealthy investors require less protection than those with less knowledge, experience, and resources. During December 2023, for just the third time, the SEC staff issued a report examining the status of the natural person accredited …

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 …

Responsive Democracy And The Administrative State, Edward L. Rubin

Vanderbilt Law School Faculty Publications

I would like to thank Dean Micheal Scharf and Professor Jonathan Entin for inviting me to Case Western Reserve University School of Law to deliver the Frank J. Battisti Memorial Lecture and thank all of you for attending. It's really a pleasure to be here and to have the opportunity to offer a talk named after such a distinguished jurist. Judge Frank J. Battisti served on the United States District Court for the Northern District of Ohio for 33 years, and he was chief judge of that court for more than two decades. During his time on the bench, Judge …

The Invention Of The Judicial Administrative State, Marin K. Levy

Michigan Law Review

A review of The Taft Court: Making Law for a Divided Nation, 1921–1930. By Robert C. Post.

Pictures Of A Revolution: Administrative Law In A Time Of Change, Shalev Gad Roisman, Oren Tamir

Michigan Law Review

A review of multiple supplements and updates to several different titles and editions.

Saving Agency Adjudication, Aaron L. Nielson, Christopher J. Walker, Melissa F. Wasserman

Articles

When discussing the federal judiciary, commentators typically fixate on the 800 or so “Article III” judges who are nominated by the President, confirmed by the Senate, and enjoy life tenure and salary protection. Yet most federal adjudication does not take place in federal courthouses at all. Instead, it occurs in nondescript hearing rooms in administrative agencies—if not telephonically. Indeed, the more than 12,000 agency adjudicators scattered across the federal government collectively issue millions of decisions per year on subjects ranging from Social Security and veterans benefits to immigration and patent rights. In recent years, however, scholars and agency adjudicators have …

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 …

We The People... Deserve Fair Taxes, Doron Narotzki, Tamir Shanan

Cardozo Journal of Equal Rights & Social Justice

In a world where economic inequality is deepening, tax law has emerged as one of the most powerful tools for shaping social justice. This Article explores how progressive taxation serves not only as a fiscal mechanism but as a reflection of societal values and the moral obligations of wealth. With legal methodologies such as Purposivism, Originalism, and Living Constitutionalism providing different interpretative lenses, this Article delves into the crucial discourse surrounding income, tax avoidance, deductions, and wealth taxation.

Through an analysis of real-world tax policies and legal precedents, the Article examines how these methodologies either perpetuate or challenge the current …

Against Monetary Primacy, Yair Listokin, Rory Van Loo

Faculty Scholarship

To reduce inflation, the Federal Reserve (Fed) raises interest rates. But every month with high interest rates increases the risk of a devastating recession. Recessions impose not only short-term pain in the form of widespread unemployment but also lifelong harm for many, as vulnerable workers and those who start their careers during a downturn never fully recover. Yet hiking interest rates is the centerpiece of U.S. inflation-fighting policy. When inflation is high, the Fed raises interest rates until inflation is tamed, regardless of the consequent sacrifices. We call this inflation-fighting paradigm “monetary primacy.” Despite its great risks, monetary primacy has …

The Lost English Roots Of Notice-And-Comment Rulemaking, Rephael G. Stern

Faculty Scholarship

Notice-and-comment rulemaking is arguably the most important procedure in the modern administrative state. Influential accounts even frame it as the 1946 Administrative Procedure Act’s “most important idea.” But its historical origins are obscure. Scholars have variously suggested that it grew out of the constitutionally sanctioned practice of congressional petitioning, organically developed from the practices of nineteenth-century agencies, or was influenced by German conceptions of administrative rulemaking. These histories, however, are incomplete. Using original archival research, this Article demonstrates that notice-and-comment rulemaking was the product of a series of American transplantations of English rulemaking procedures that developed in the late nineteenth …

Working With Statutes, Anya Bernstein, Cristina Rodriguez

Faculty Scholarship

In its decision overruling the Chevron doctrine—which directed judges to accept an agency’s reasonable interpretation of ambiguous statutory language—the Supreme Court declares: “[A]gencies have no special competence in resolving statutory ambiguities. Courts do.” This Article shows why this statement exhibits a profoundly blinkered judicial hubris. Our interview-based empirical study, involving dozens of agency officials across the administrative state, shows agencies’ special, indeed unique, competence in working with statutes to make democratic enactments real.

Agencies, we show, act as a statute’s custodians, managing the statutory regime over a life cycle that exceeds any single governing coalition. Borrowing ideas from private law, …

Orientasi Rigid Dan Moderat Dalam Penafsiran Original Intent Dan Praktiknya Di Indonesia, Muhammad Alwi Khoiri Ramdani, Susi Dwi Harijanto, Lailani Sungkar

Jurnal Hukum & Pembangunan

Metode original intent lazimnya menghasilkan penafsiran yang bersifat rigid sesuai niat perumusnya. Selama konstitusi tidak diubah, maka tafsiran original intent pun tidak berubah. Namun penggunaan metode penafsiran original intent di Indonesia dapat menghasilkan pemaknaan yang berbeda/berubah meskipun ketentuan konstitusi dan perumusnya tidak berganti. Hal ini terjadi karena terdapat perkembangan pemikiran dalam penerapan metode penafsiran original intent. Penelitian ini membahas mengenai perkembangan pemikiran tersebut dan menganalisa pola penerapan metode original intent dalam penafsiran konstitusi yang dilakukan oleh Mahkamah Konstitusi di Indonesia. Ini merupakan penelitian doktriner dengan pendekatan konsep dan kasus. Hasil penelitian menunjukkan bahwa terdapat perkembangan pemikiran dalam penerapan metode penafsiran …

Evaluasi Implementasi Putusan Mahkamah Konstitusi Terhadap Desain Surat Suara Calon Tunggal Dalam Pilkada, Enika Maya Oktavia, Rizki Maulana Syafei, Tsalis Khoirul Fatna

Jurnal Hukum & Pembangunan

The phenomenon of single candidates in regional elections in Indonesia has created a dilemma in applying democratic principles, especially regarding ballot design that often confuses voters. The Constitutional Court’s Decision Number 100/PUU-XIII/2015 mandated a plebiscite design with “agree” or “disagree” options for single candidates. However, in practice, this design has been distorted with the presence of a blank box without adequate explanation. This study aims to evaluate the extent to which the discrepancy between the Constitutional Court's decision and actual ballot design practices affects voter understanding and the quality of democracy. This study employs a normative juridical method with a …

Disharmoni Peraturan Penawaran Prioritas Wilayah Izin Usaha Pertambangan Khusus (Wiupk) Pasca Diprioritaskan Terhadap Badan Usaha Organisasi Kemasyarakatan “Keagamaan”, Ananda Putri Salsabila

Jurnal Hukum & Pembangunan

Abstract

Priority offering of Special Mining Business License Areas (WIUPK) to business entities owned by religious community organizations without going through an auction process has caused legal polemics in Indonesia, especially after the enactment of Government Regulation (PP) Number 25 of 2024 concerning Amendments to Government Regulation Number 96 of 2024 2021 concerning Implementation of Mineral and Coal Mining Business Activities. This research aims to examine whether the policy is in accordance with applicable laws and regulations, especially in the context of implementing mineral and coal mining business activities. Apart from that, this research will also analyze the legal consequences …

Quo Vadis Hak Atas Kesehatan Reproduksi: Analisis Rekonstruksi Pengaturan Aborsi Di Indonesia (Perbandingan Hukum Indonesia Dengan Perancis), Dian Kencana Putri, Erna Dyah Kusumawati

Jurnal Hukum & Pembangunan

Pembatasan akses aborsi di Indonesia menyebabkan banyak perempuan dengan kehamilan tidak diinginkan terpaksa berhadapan dengan hukum. Pembatasan aborsi yang mengakibatkan kriminalisasi ini dapat menyebabkan dilema moral bagi banyak perempuan yang mengalami kehamilan tidak diinginkan. Padahal aborsi berpotensi terjadi pada setiap perempuan berusia produktif di Indonesia. Aborsi di Indonesia merupakan tindakan ilegal dan aborsi hanya dapat dilakukan dalam dua kondisi saja, yakni kedaruratan medis dan kehamilan yang disebabkan perkosaan. Artikel ini menganalisa bagaimana sebenarnya substansi aborsi dapat dimasukkan pada kategori hak kesehatan reproduksi perempuan dan mengapa negara Indonesia perlu mengubah kebijakan dan hukum mengenai aborsi. Untuk melihat seberapa pentingnya negara harus …

Konstitusionalitas Model Putusan Bawaslu Dalam Penyelesaian Pelanggaran Administratif Pemilu, Muhammad Rifai Yusuf, Syarif Hidayat

Jurnal Hukum & Pembangunan

As one of the institutions that carries out quasi-judicial functions in the field of general elections, Bawaslu could issue a decision through an adjudication process. In 2017, Bawaslu was criticized for its several decisions in the Sipol case held by the KPU for the registration of participants in the 2019 general elections, mainly because it was considered that Bawaslu equated its position with the Supreme Court by assessing that Sipol in the KPU Regulation was not in line with the Election Law. In 2024, decisions on election administrative violations appear to be softer or seem to avoid the same potential …

Some Issues In Armed Conflict And Human Rights: Issues Toward Human Rights And Applicable Law In The Battlefield, Hiroshi Saito

Japanese Society and Culture

In recent years, Japan’s legal system regarding defense has improved, but little research has been conducted on what would happen if Japanese territory became a battlefield. Due to the Japan–US Security Treaty and the Japan–US Status of Forces Agreement, Japanese territory could technically become a space for armed conflict in the wake of US military action. If this happened, various legal issues would arise, but under the Japanese Constitution and domestic laws, which are primarily concerned with the protection of human rights, there would be a dual application of international humanitarian law and domestic laws including the Constitution. An important …

Litigating Vertical Mergers: Innovation Dynamics From Illumina-Grail, Aurelien Portuese

Washington and Lee Law Review Online

Illumina-Grail represents an important moment in antitrust litigation, reshaping the legal landscape for vertical mergers in innovation-driven markets. This Article analyzes the Federal Trade Commission’s uncommon achievement in blocking the Illumina-Grail merger—a ruling sustained by the Fifth Circuit Court of Appeals—emphasizing its significant ramifications for antitrust legislation. The case examines the complex dynamics of innovation competition and emerging market definition, challenging established doctrines regarding the inherently procompetitive nature of vertical mergers. This Article examines the changing criteria for defining relevant markets and evaluating competitive harm in research and development-oriented industries. It also discusses the Fifth Circuit’s support of the FTC’s …