Category Archives: Administrative Law
Mar 17, 2026 Daniel WaltersAdministrative Law
When the newly minted Department of Government Efficiency (DOGE) captured headlines in the early part of the new Trump administration for, in Elon Musk’s words, feeding federal programs into the wood chipper, outrage erupted. And it is not hard to see why. Here was a “special government employee” heading a shadowy new office that was apparently burning the midnight oil to make consequential, unilateral decisions about appropriated federal dollars. Concerns began to emerge that Musk was unconstitutionally appointed, but the concerns ultimately did not go anywhere before DOGE apparently disappeared. Part of the reason for that tepid legal response can be chalked up to the Trump administration’s ace in the hole. DOGE didn’t have any actual authority to feed programs into the wood chipper; it needed some other entity with actual authority to rubber-stamp its work. And rubber-stamping of this sort is pervasive.
In a new article, Adam Samaha gives us a helpful framework for thinking about not only DOGE, but also countless other arrangements in modern government where one actor apparently approves, without any serious independent thought or judgment, the work of another actor. Although many of the examples Samaha uses to illustrate rubber-stamping dynamics come to us from administrative law, rubber stamps can be found almost anywhere institutional decisions are made. Continue reading "Rubber Stamps Running Riot"
Feb 16, 2026 Michael E HerzAdministrative Law
A year into the second Trump administration, the 47th president has done a pretty darn impressive job of destroying state capacity. Resources, personnel, expertise, law-following, law-enforcement, ethics, and competence have all been jettisoned. For many observers, the result is a catastrophic inability of the federal government to accomplish basic functions.
In The Secular Decline of the American State, Ganesh Sitaraman has arrived with some good news and some bad news. The good news is that the current administration’s sapping and mining are not that aberrant; Trump’s dismantling project has not, in fact, fundamentally shifted the country from the path it has been on for some time. The crisis is not acute. Whew. Continue reading "The Deep Causes of The Shallow State"
Jan 16, 2026 Edward RubinAdministrative Law
Donald Trump has placed the issue of the President’s removal power before the Supreme Court, and its answer will undoubtedly be one of its most important decisions in the entire field of administrative law. Independent agencies, where leadership is appointed by the President with Senate approval and can only be removed for cause, have been a mainstay of our modern administrative state since its development in the late nineteenth century. The first modern agency, the Interstate Commerce Commission, was structured in this manner, and the model has been regularly employed for many others, including the Federal Trade Commission, the Securities Exchange Commission, and the Federal Reserve Board.
Although prediction is a notoriously difficult enterprise, current indications are that the Court will accede to Trump’s argument (sometimes described as the unitary executive theory) that the President has inherent power to remove most, or all, executive officials and that the many enacted provisions limiting him to removal for cause are unconstitutional. This will reverse a century of Supreme Court doctrine; indeed, except for some expansive language in Chief Justice Taft’s 1926 decision in Myers v. U.S. (whose actual holding is the uncontroversial principle that Congress may not participate in the removal process), the Court has never questioned the constitutional validity of independent agencies. In decisions such as Seila Law v. CFPB and Free Enterprise Fund v. PCOAB, it struck down the use of for cause provisions to create innovative agency structures, but it left the basic principle – as articulated in Humphrey’s Executor v. U.S. and revised in Morrison v. Olson — intact. The pragmatic consequences that will flow from reversing this long-established doctrine will be unfortunate at best. Donald Trump has demonstrated hostility to democratic governance and the rule of law, not merely by statements and behaviors reported by the press, but through actions repeatedly struck down by federal courts. In other words, his troubling pattern of political and legal irresponsibility can be discerned from the legal record that falls within the Court’s institutional purview. To grant him the power to ignore the limits that have accompanied Congressional grants of authority for one hundred fifty years and exercise sole control of the entire administrative apparatus is to court disaster. Continue reading "How to Avoid Trumping the Legal History of Removal"
Dec 4, 2025 Richard MurphyAdministrative Law
Recently, for whatever reason, I found myself thinking that it would be helpful to read something that could help me order my scattered thoughts about presidential control of regulatory power. Maybe because of all the executive orders. Fortunately, I ran across just the thing, Presidential Regulation, by Professors Timothy Meyer & Ganesh Sitaraman, which provides a wonderfully illuminating account of the nature, history, implications, and likely future of, well, presidential regulation.
Meyer and Sitaraman explain that presidential regulation “takes place when the President relies on his own powers—whether statutory, constitutional, or a combination thereof—to regulate the U.S. economy in ways not explicitly contemplated or directed by Congress.” (P. 807.) Presidential regulation is thus distinct from “presidential administration,” a la Justice Kagan, which involves presidents “shaping and taking credit for agency actions.” (P. 809.) Rather, presidential regulation involves direct exercise of powers delegated to the president by the Constitution or Congress. Continue reading "The What, When, How, and Why of Presidential Regulation"
Nov 6, 2025 Jameson PayneAdministrative Law
As a quick search through JOTWELL’s archives will prove, scholars have given no shortage of attention to universal remedies. And it’s no surprise why: the question of whether courts can grant non-party relief is not just a thorny constitutional matter; its practical effects are also immense. Therefore, the universal remedies debate has enjoyed lively back and forth, with compelling arguments—some historical, some pragmatic—issued from both camps. And while this debate raged on, the Supreme Court sat in patient wait, signaling its views with a concurrence here and there, waiting for the opportune moment to strike. And strike it did.
One might think that SCOTUS’ ruling last term in Trump v. CASA will inter the universal remedies debate, at least practically, since it ruled that “universal injunctions likely exceed the equitable authority that Congress has given to federal courts.” But this is improbable. While injunctions may be off the table, the opinion made an important caveat for alternative types of universal relief. Perhaps the most significant among these alternatives is “vacatur,” which some argue is permitted by the Administrative Procedure Act’s instruction that courts “hold unlawful” and “set aside” agency action. With standard-issue universal injunctions no longer permitted, vacatur must now work overtime to meet the demand for nationwide relief. The focus of the debate, therefore, shifts to vacatur, and all the same problems raised in CASA must now be reconsidered. Does vacatur run afoul of the same Article III principles that nationwide injunctions do? And what are its costs and benefits? Continue reading "Vacatur as Redressability: Towards a New History of Universal Relief"
Oct 7, 2025 Margaret KwokaAdministrative Law
Jonathan David Shaub,
White House Inspection, 103
Wash. U. L. Rev. __ (forthcoming 2026) available
at SSRN (Feb. 25, 2025).
Allegations of illegality—sometimes quite serious in nature—are, sadly, no stranger to the presidency. Nearly every recent President has faced some sort of scandal and attendant inquiry. They all sound familiar. Obviously, there is Nixon’s benchmark Watergate scandal. But then there is also the Iran-Contra affair of Reagan’s presidency. Clinton’s extramarital activities. George W. Bush’s involvement in outing Valerie Plame as an undercover CIA officer. Biden’s personal possession of classified documents. Trump’s involvement in the January 6 attacks on the Capitol. Safe to say, these matters show no sign of abating. The theater of investigations that follow these scandals is also familiar, all promising some version of accountability. Special prosecutors are appointed. Inquiries are launched. Grand juries are sometimes convened. Congress may even bring articles of impeachment or hold an actual impeachment trial.
But the political fight often focuses on the investigation itself. Claims of executive privilege prevent access to key documents, allegations of partisanship color the investigations, and constitutional constraints abound, all while accountability remains elusive. In an incredible read and a fantastic example of one of my favorite forms of scholarship, Professor Jonathan Shaub sketches a vision for reforms that parts the muddy waters of our current practices and shows us a practical and meaningful path to accountability at the highest levels of the executive branch. Indeed, the best part of Professor Shaub’s vision, laid out in White House Inspection, is that he divorces the trickier consequences—actual enforcement or legal peril—from the kind of accountability that frankly has often had greater effect, the watchful eye of an independent party empowered to inspect the actions of the President. Continue reading "Informational Accountability for the President"
Sep 15, 2025 Mila SohoniAdministrative Law
Looming over our law, or lurking beneath it, are theoretical frameworks that guide how we think about it. With respect to administrative law, there are two such influential frameworks that will immediately spring to mind and that share much in common: originalism and cost-benefit analysis.
What? Readers might already be scratching their heads. This strange pairing would seem to be worlds apart. Originalism is the stuff of lofty theory and founding-era history and hard-fought debates concerning the nature of fundamental rights and the separation of powers. Cost-benefit analysis, in contrast, is the stuff of pocket protectors and green eyeshades and hard-fought debates concerning discount rates and valuations. Originalism is for lawyers; cost-benefit analysis is for economists. But as Professors Jonathan Masur and Eric Posner demonstrate in a recent article, The Common Political Foundations of Originalism and Cost-Benefit Analysis, the two have more kinship than meets the eye. Continue reading "Twins Separated at Birth"
Jul 24, 2025 Christopher WalkerAdministrative Law
In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 524 (1978), the Supreme Court famously announced that “[a]gencies are free to grant additional procedural rights [beyond those required by the Administrative Procedure Act] in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them.” In an administrative law course, we focus somewhat myopically on the second half of the statement—that courts cannot impose more procedural requirements on federal agencies than Congress has commanded by statute. But the first part of the sentence is just as important. It is in Vermont Yankee’s “white space,” as Emily Bremer and Sharon Jacobs aptly call it, that so much of the action in administrative law takes place. This is the world of internal administrative law.
Historically, internal administrative law has often been neglected in the literature, with some exceptions such as Jerry Mashaw’s majestic Bureaucratic Justice. In recent years, however, we have seen more scholarly attention, which is chronicled in Gillian Metzger and Kevin Stack’s 2017 article Internal Administrative Law. I have contributed some to this literature, trying to operationalize internal administrative law and exploring how it can constrain and empower regulatory activities outside of courts. A recent addition to the literature is well worth a read and the subject of this review: Professor Stack’s article The Internal Law of Democracy is a spectacular exploration of how internal law works in state and local governments, in the context of election administration. There is so much to like (lots) about this article, and it is a must-read for scholars of administrative law, election law, and local government law as well as political science and public administration. Continue reading "Shifting Attention to Internal Administrative Law in the States"
Jun 26, 2025 Emily BremerAdministrative Law
Emily Hammond,
Agency Amici, 58
U.C. Davis L. Rev. 1669 (2025).
How will the recent, significant changes in administrative law doctrine affect on-the-ground administrative activities of longstanding vintage? This question blooms today in a thousand different places, offering administrative lawyers endless opportunity to give that most favored of lawyerly responses: “It depends.” In Agency Amici, an article recently published in U.C. Davis Law Review, Emily Hammond offers a rich and sophisticated analysis of the question as it relates to the age-old practice of administrative agencies filing amicus briefs in ongoing litigation between other parties. The article contributes to the literature on agency amici with empirical evaluation, in-depth case studies, and normative analysis at a moment of transition from the old regime of judicial deference under Chevron and Auer to the new regime under Loper-Bright and Kisor. The result is a rich and fascinating portrait of an established practice that sheds useful light on the possibilities for its future.
An amicus, or “friend of the court,” brief is filed in ongoing litigation by someone who, though not a party to the case, has a strong interest in the issues that will be decided. A federal administrative agency may file such a brief in a case that implicates its statutory responsibilities but does not involve judicial review of the agency’s own action. In these cases, the agency may be able to offer the court a well-informed statutory analysis, as well as practical and regulatory context that the parties to the case may not have the ability or incentive to provide. Continue reading "Friendship Under Conditions of Uncertainty"
Jun 2, 2025 Jodi ShortAdministrative Law
Julie E. Cohen,
Oligarchy, State, and Cryptopia, available at
SSRN. (March 10, 2025).
In Oligarchy, State, and Cryptopia, Julie Cohen lays the groundwork for re-theorizing the administrative state in the age of Trump II, DOGE (otherwise known as the Department of Government Efficiency), and their unparalleled assault on the institutions of government. Before now, generations of deregulatory politics and rhetoric have tended paradoxically to produce more rules rather than less, and they have decidedly not produced any radical restructuring of government regulatory institutions. The settled explanation from scholarship in a variety of fields is that while businesses often spout the rhetoric of deregulation, they actually want—perhaps need—regulation for reasons including competition control, market making, and firm survival and stability. The extensive and unprecedented dismantling of government institutions spearheaded by DOGE radically unsettles those understandings, which begs questions about why this time is different.
Cohen’s article begins to address those questions and, more broadly, sets the terms for future theorizing about administrative law and regulation in a cogent, meticulous, and frankly chilling account of the tech oligarchy and its relationship to, and ambitions for, state power. Cohen starts from the premise that existing theories of administrative law and regulation give too little attention to oligarchy as a phenomenon that shapes the use of state power and regulatory authority in ways that go beyond the familiar industry capture story. Based on influential research in political science, she defines oligarchy as “a particular form of concentrated power based on the accumulation of extreme material wealth and the use of such wealth to obtain systemic, inescapable advantage within a political system or community” (P. 6). Cohen argues that the principal difference between tech oligarchs and capitalist oligarchs of yore is that the former are becoming increasingly unwilling to submit to a rule-of-law system to advance and protect their dominance. Instead, tech oligarchs increasingly seek to move towards a system in which they displace the state and exercise coercive power directly—including by individual fiat. Continue reading "Re-theorizing Administrative Law in the Great Unsettling"
