Category Archives: Administrative Law
Aug 8, 2018 Jack BeermannAdministrative Law
I feel a bit like Gilligan in one of my favorite episodes of Gilligan’s island. The Professor and the Skipper are having an argument over some issue vital to the castaway’s prospects of being rescued from the island. Gilligan is standing in the middle agreeing with everything both parties to the argument say, and finally the two disputants become fed up with Gilligan’s endorsement of diametrically opposing views and they turn on him. In this Jot, I praise two articles that take conflicting views on an issue vital to the future of administrative law, namely, when should federal courts, confronted with unconstitutional or otherwise illegal Executive Branch action, issue nationwide injunctions: Sam Bray’s Multiple Chancellors: Reforming the National Injunction, and Amanda Frost’s In Defense of Nationwide Injunctions. Hopefully, the reader won’t turn on me.
Bray’s article, which was reviewed by Professor Kevin Walsh in a pre-publication Jot in the Courts Law section of Jotwell, is deeply skeptical of the nationwide injunction, arguing that federal injunctions should be no broader in scope than necessary to protect the plaintiff from the injury underlying the plaintiff’s standing to seek the injunction in the first place. By contrast, Frost’s article contends that federal courts should be willing to grant nationwide relief not only when necessary to provide plaintiffs with complete relief but also when necessary to protect numerous similarly situated parties who cannot quickly bring their claims to federal court. Continue reading "Two Views on the Nationwide Injunction"
Jul 9, 2018 Jodi ShortAdministrative Law
In The American Deep State, Jon D. Michaels pushes back against the increasingly shrill rhetoric charging that shadowy forces deeply embedded within the federal bureaucracy have commandeered the reins of government and are thwarting the President and undermining the democratically expressed will of the people. Michaels does not shrink from the “deep state” terminology, but rather seeks to co-opt it in an ode to what he calls “bureaucratic depth.”
Michaels extols numerous advantages of bureaucratic depth. First, he notes that bureaucratic depth is, as a practical matter, what makes the state work. It is a measure of state capacity. The deep bench of civil servants in the United States “mak[e] and enforce[e] regulations, design[] and run[] welfare programs, combat[] crime and corruption, and provid[e] for national defense.” These functions simply do not work—or do not work well, consistently, and non-corruptly—in states that lack bureaucratic depth. Second, Michaels argues that for precisely this reason, bureaucratic depth generally facilitates the implementation of the president’s agenda. Presidents should not, as a matter of course, wish for a hollowed out administrative state if they want to advance a political agenda. Finally, Michaels argues that bureaucratic depth can serve important stabilizing and accountability functions. “In those rare instances when presidents (and their hand-chosen agency heads) go beyond the proverbial pale, those in the civil service are particularly well-positioned to challenge, and even to resist, directives lacking a scientific, legal, or commonsensical foundation.” At base, his argument is that bureaucratic depth advances important rule-of-law values by serving as a check on lawless exercises of presidential power. Those outside the civil service are unlikely to have the combination of inside knowledge and protection from retaliation necessary to promote transparency about unlawful, unethical, or extraordinarily unwise presidential initiatives. Continue reading "In Praise of Bureaucracy"
Jun 12, 2018 Bijal ShahAdministrative Law
Declaring the administrative state “unlawful”—in other words, as consisting of agency efforts to evade constitutional restrictions—is all the rage these days. Despite the fact that these assertions condemn administrative undertakings (both their substance and variety), they sometimes overlook both the legislation governing agency actions and the agency policies that they categorically disparage. In Internal Administrative Law, Professors Gillian Metzger and Kevin Stack assert that “internal administrative law” is lawful by reminding us of its roots in public administration, with an argument that is based in the Administrative Procedure Act (APA) and that considers specific examples of administrative guidance. Given that it investigates a complex and sometimes opaque administrative framework, this piece also contributes to scholarship exploring the so-called “black box” of agency activity. The thoughtful execution and wide-ranging implications of this article make it a highly worthwhile read, and of a piece with Metzger and Stack’s respective bodies of work.
Metzger and Stack offer a fascinating conceptual account of the internal directives through which agencies and presidents manage, guide, and coordinate the civil service. In addition, the authors assert that these forms fulfill the criteria of “law,” based both on the original expectations of the APA and on their own consistency with legal norms. For this reason, the authors argue, the prevailing doctrinal emphasis on the external enforcement of public administration, in addition to the general assumption that a policy must create a system of private rights and obligations to be considered law, denies the fundamentally law-like nature of internal administrative law. Continue reading "Putting Public Administration Back into Administrative Law"
May 15, 2018 Kristin HickmanAdministrative Law
In the Fifth Edition of the Administrative Law Treatise, released in 2010, Richard Pierce described a raging debate within the academic community and the courts at that time over the appropriate role of democratic values and institutions in the administrative state. This debate encompassed such topics as the validity of unitary executive theory, how best to resolve disagreements between Congress and the President, and how to manage the risk that courts would become “the primary architects of national policy through their efforts to keep agencies within legal boundaries.” Eight years later, that same debate over the values, institutions, and structures of contemporary governance still rages on. A trio of pieces published last fall by Harvard Law Review both exemplifies and contributes to that ongoing conversation. As the author of this academic year’s Harvard Law Review Foreword, Gillian Metzger has penned a bold and provocative defense of the modern administrative state. Aaron Nielson and Mila Sohoni provided thoughtful response essays. Collectively, these pieces demonstrate scholarly engagement at its best.
As one might expect of the Foreword, Metzger’s article is masterful in its articulation and support of two separate but related propositions. The first is her identification of a combined political, jurisprudential, and scholarly trend that she labels “anti-administrativism” and characterizes as the contemporary resurrection of a very old fight. As she opens her piece, “Eighty years on, we are seeing a resurgence of the antiregulatory and antigovernment forces that lost the battle of the New Deal.” Metzger characterizes as anti-administrativist various actions and initiatives of the Trump Administration and the Republican Congress to reduce regulatory burdens, downsize the federal government, and reform the Administrative Procedure Act. Other presidents have pursued a similar agenda, but Metzger says their “promises … largely went unfulfilled” as compared to present efforts. Metzger also classifies as anti-administrativist a number of Supreme Court and D.C. Circuit cases—some from the 2016 Term, others predating it—concerning separation of powers principles, the Chevron and Auer standards of judicial review, and other constitutional issues. Continue reading "Administrative Law Scholarship in Our Present Political Moment"
Apr 16, 2018 Michael E HerzAdministrative Law
Ronald Levin,
Rulemaking and the Guidance Exception, 70
Admin. L. Rev. (forthcoming 2018), available at
SSRN.
The late, great Kenneth Culp Davis was known for many things, but humility was not among them. He knew the answers; he knew them better than did the Supreme Court; and he knew that he knew them. So it is remarkable that there was a problem in administrative law he found “baffling.” That was the distinction between legislative rules, interpretive rules, and statements of policy.
Interpretive rules and statements of policy are now generally labeled “guidance documents,” although that term does not appear in the Administrative Procedure Act. (At least not yet. Indicative of the attention and controversy that surround them, the Senate version of the pending Regulatory Accountability Act would amend the APA to define and attempt to constrain the use of “guidance.”) Agency reliance on guidance documents has led to two related controversies. One is normative and empirical: is the phenomenon an instance of responsible and helpful governance or, rather, an abusive end-run around notice-and-comment requirements? The other is doctrinal: how can one tell what’s a legislative rule and what’s a guidance document? The distinction matters, because the former are subject to the APA’s notice-and-comment requirements and the latter are not. Yet the courts have been as baffled as K.C. Davis, unable to construct a coherent and manageable body of law. Umpteen pages of law review commentary have not improved matters, and the recent politicization of the debate has only compounded the confusion and disarray. Continue reading "Once More Unto the Breach, Dear Friends — Levin on the Guidance Exception"
Mar 26, 2018 Eloise PasachoffAdministrative Law
Regionalism in America is having a renaissance—in conceptualizing the shared and competing interests of red, blue, and purple states; in developing new possibilities for governance across the country; and in administrative law scholarship. Into this mix comes Jessica Bulman-Pozen’s timely and thoughtful article, Our Regionalism. While we usually talk about “Our Federalism,” regionalism has in fact “shaped American government over the past century,” helping to define “how power flows to and within the federal government.” (Pp. 381-382.) In making this case and exploring how regionalism’s different governance forms have, over time, both expanded the federal bureaucracy and increased state power within federal programs, Bulman-Pozen’s work also helps frame the contemporary stakes for the American polity of “regionalism’s ‘bad twin,’ sectionalism.” (P. 380.)
After first offering a “stripped-down understanding” of the term “region”— “a subnational area encompassing all or part of multiple states” (P. 383) —the article begins with a helpful taxonomy that justifies Bulman-Pozen’s claim that “regional organization pervades state and federal administration.” (P. 388.) In her conception, regional governance has developed over time to encompass three main varieties. First is interstate collaboration, in which states band together to solve a common problem. The interstate compact, provided for by Article I, Section 10 of the Constitution, is the oldest and most common of this form of regional governance, but other types exist as well, including interstate agreements (less formal than compacts because they allow for unilateral withdrawal), and “the synchronized adoption of substantially similar laws” in neighboring states. (P. 387.) Continue reading "Regional Administration and the American Experiment"
Mar 13, 2018 Richard MurphyAdministrative Law
For over thirty years, every President has issued or maintained executive orders that require agencies to prepare highly formal benefit-cost analyses (BCAs) for significant rules and to submit these BCAs to the Office of Information and Regulatory Affairs (OIRA) for review. For just as long a time, administrative law scholars have been fighting about the merits of both formal BCAs and centralized review. Over time, the locus of this debate has shifted from whether to conduct BCA as part of rulemaking to how to conduct it. The Supreme Court contributed to this shift a couple of years ago in Michigan v. EPA, when all nine justices agreed that reasonable rulemaking requires an agency to give some form of consideration to costs and ensure that they do not wildly outweigh benefits.
The debate over how to conduct BCA, in turn, centers on the problem of monetization. Although President Trump’s issuance of E.O. 13,771 has in many respects dramatically altered White House controls on agency rulemaking, the key executive order governing this process, E.O. 12,866, remains in place. It instructs agencies to monetize costs and benefits “to the extent feasible” as they prepare BCAs as part of their regulatory impact analyses (RIAs). This requirement can put agencies in the difficult position of placing monetary values on nonmarket goods such as preventing a parent from backing a vehicle over a young child. Notwithstanding such difficulties, some scholars contend that to ensure socially optimal rules, agencies should increase their commitment to monetization—even an educated guess on a dollar value, properly explained, is better than giving up on quantification. Continue reading "Just How Big an Envelope Will You be Needing for that Benefit-Cost Analysis?"
Jan 31, 2018 Mila SohoniAdministrative Law
Katherine Shaw,
Beyond the Bully Pulpit: Presidential Speech in the Courts, 96
Tex. L. Rev. 71 (2017), available at
SSRN.
President Donald Trump is a loquacious man. He speaks at rallies, he speaks at interviews, he speaks at press conferences, he speaks in addresses to Congress, and—nearly every day—he speaks on Twitter. Sometimes, he speaks about his own speech, as when, at a recent rally in Phoenix, Arizona, he quoted at length, though with notable omissions, from his own earlier statements concerning the recent events in Charlottesville, Virginia, where a woman was killed at a protest by neo-Nazis and white nationalists.
In her recently published article, Beyond the Bully Pulpit: Presidential Speech in the Courts, Professor Kate Shaw examines the phenomenon of presidential speech and explains how the courts should treat presidential statements in the course of deciding cases that challenge executive-branch action. Her article has already (and rightly) enjoyed a fair share of the limelight; Professor Shaw’s work on presidential speech was featured in the New Yorker and in the National Law Journal. She also wrote an op-ed on presidential speech in the New York Times earlier this summer. So, while this Jot comes late to the party, I hope it will persuade administrative law scholars who haven’t yet encountered this article that it is still well worth a read. Public presidential statements aimed at influencing agency behavior are an increasingly important facet of “presidential administration,” in the phrase coined by then-Professor Elena Kagan in her famous article. And while Professor Shaw’s discussion ranges far beyond the words of the sitting President, this article is especially salient nowadays, when the headlines are often consumed with reporting and dissecting President Trump’s every utterance. Continue reading "Did He Really Just Say That?"
Dec 13, 2017 Kathryn WattsAdministrative Law
Since January 2017, the news headlines have been screaming about one administrative law issue after another—everything from the Congressional Review Act to regulatory rollbacks, from Executive Orders to agency enforcement priorities. These news headlines have quite understandably prompted a flood of questions about what the law does, and does not, allow the president and others within the Executive Branch to do. For example, can a president use an Executive Order to unilaterally revoke an agency rule that is already on the books? Or, at an even more basic level, what exactly is an Executive Order?
Notably, it is not just those in the legal profession who are asking these sorts of questions. Rather, the 2016 election made many members of the public hungry to learn more about how our government works and what constraints the law places on executive power. This is where Environmental Protection in the Trump Era, a new e-book published jointly by the Environmental Law Institute and the American Bar Association’s Civil Rights and Social Justice Section, comes into play. The book, which is free for any member of the public to download, aims to further the public’s “understanding of the legal mechanisms that the White House, federal agencies, and Congress are using to change the regulatory approach to environmental, natural resources, and health and safety protections.” Continue reading "Furthering Civic Engagement in the Environmental Arena"
Nov 28, 2017 Margaret KwokaAdministrative Law
David Pozen,
Freedom of Information Beyond the Freedom of Information Act, 165
U. Pa. L. Rev. 1097 (2017), available at
SSRN.
The literature on the Freedom of Information Act is replete with familiar claims about FOIA’s shortcomings. It takes too long to get a response. Agencies over-withhold records. The exemptions to mandatory disclosure are too broad. Congress fails to adequately fund FOIA offices. Judicial remedies are difficult to pursue and often unavailing. And as I have argued, FOIA is overtaken by commercial and individual uses that do not promote democratic accountability. But rarely does scholarship in this area provide a compelling critique of the underlying premise of FOIA: that the Act, if functioning as envisioned, promotes the ideal of democratic accountability.
David Pozen’s Freedom of Information Beyond the Freedom of Information Act has compellingly questioned this fundamental assumption, giving me more pause than anything else I have read in quite some time. In essence, Pozen argues that FOIA acts as a regressive, not a progressive, tool, hobbling the administrative state in its missions to protect the public’s health, safety, and opportunities, all while rubber stamping the excess of secrecy that characterizes the national security state where transparency may be most needed. Continue reading "Is FOIA Actually Hurting Democracy?"
