Category Archives: Administrative Law

Chevron as a Legal Framework

Oct 24, 2017 Adrian VermeuleAdministrative Law

Adrian Vermeule

Chevron deference is the cause of more wasted energy than any other doctrine in administrative law. True, the hopes and illusions that spur Chevron’s opponents onwards are perfectly intelligible. In some cases, the cause is a fervent, if cockeyed, constitutional vision; in other cases, a principled free-market libertarianism that becomes associated with opposition to Chevron (even though it is hardly obvious that Chevron has any intrinsic pro-regulatory bias); or a principled legalistic concern that judges, rather than agencies, should “say what the law is” (even though the law may itself mandate deference). But the result is so much less than the effort. A handful of lower-court judges, including then-Judge Gorsuch, have criticized the doctrine on constitutional grounds; so has one Justice, Clarence Thomas. But of course Justice Gorsuch might or might not see the issue the same way from his new seat, and the Court’s other Justices range themselves somewhere between “comfortable with the prevailing approach,” on one end of the spectrum, and “inclined to cabin Chevron around the edges,” on the other end. But there is no realistic prospect of a majority to overrule Chevron or even to narrow it to death.

Hickman and Bednar’s calm, learned and commonsensical paper explains why Chevron isn’t going anywhere. Part of the problem is that “Chevron” denotes a particular case decided in 1984, but connotes a far broader and more enduring phenomenon of deference, one that results from long-run structural and institutional causes. Deference to executive officials on questions of law predates Chevron by decades, at the least. With convincing examples, including an illuminating analysis of AT&T Co. v. United States (U.S. 1936), Hickman and Bednar show that there has long been a category of cases, involving difficult questions of public policy, in which judges know that they don’t know enough to spell out in detail what exactly ambiguous statutes should mean. In such cases, “deference” is just shorthand for the entirely pragmatic thought that if the front-line decision maker hasn’t obviously gone off the rails, the judges aren’t likely to make things better by substituting in their own judgments, which may perhaps be ill-informed, eccentric, harmful or politically unacceptable. Continue reading "Chevron as a Legal Framework"

An Empirical Window into Retrospective Review

Sep 21, 2017 Christopher WalkerAdministrative Law

Christopher Walker

Retrospective review remains a hot topic in administrative law. The Administrative Conference of the United States and the American Bar Association have both recently advanced recommendations to improve agency review of existing regulations. As I have explored elsewhere, the Portman-Heitkamp Regulatory Accountability Act would amend the Administrative Procedure Act to encourage retrospective review. The Obama Administration had also encouraged it, and the Trump Administration has embraced an even more aggressive form of retrospective review in its “one-in, two-out” regulatory budgeting executive order.

Despite bipartisan calls for more-rigorous retrospective review, we have little empirical insight into how agencies review regulations today. Enter a groundbreaking new study by Wendy Wagner, William West, Thomas McGarity, and Lisa Peters.¹ In Dynamic Rulemaking, which was published in the NYU Law Review, the authors present the findings of their study of the rulemaking process with respect to four programs at three agencies: the Environmental Protection Agency (EPA), the Federal Communications Commission (FCC), and the Occupational Safety and Health Administration (OSHA). In total, they analyze 183 parent rules and all 462 revisions of those rules since the 1970s. This article is a must-read for those of us interested in agency rulemaking. Continue reading "An Empirical Window into Retrospective Review"

Bringing Back the State into Regulatory Scholarship

Aug 7, 2017 Jodi ShortAdministrative Law

Jodi Short

In The Finance Franchise, Bob Hockett and Saule Omarova take on the dual myths underpinning contemporary financial regulation: that capital is both inherently scarce and privately provided. They painstakingly document (and illustrate in simple graphics for those of us whose banking savvy is confined to remembering their ATM PIN number) the state’s role in the provision of financial products and services ranging from plain-vanilla loans to digital currencies. They reveal how, at base, all of these products and services depend on the full faith and credit of national governments to assume ultimate liability for privately-issued debt and to monetize privately-issued debt by allowing the putative private debt-holder to spend the debt proceeds as if they were currency.

In short, Hockett and Omarova demonstrate that because the state serves these two functions, “modern finance is not primarily scarce, privately provided and intermediated but is, in its most consequential respects, indefinitely extensible, publicly supplied, and publicly disseminated. At its core, the modern financial system is effectively a public-private partnership that is most accurately, if unavoidably metaphorically, interpreted as a franchise arrangement.” (P. 4.) Continue reading "Bringing Back the State into Regulatory Scholarship"

The Age of Imperial Governorship?

Jul 11, 2017 Peter ShaneAdministrative Law

Peter Shane

The idea that state constitutions might provide terrain for comparative analysis that could shed new and important light on the federal Constitution is hardly a new one. But for those of us preoccupied with the study of Article II presidential power, it is hard to imagine a much more powerful illustration of that lesson than Miriam Seifter’s fruitful and creative study of what she calls “the modern regime of gubernatorial administration.”

Seifter demonstrates that, state variations notwithstanding, contemporary governors frequently enjoy an array of tools to direct administrative governance that, in important respects, presidents would envy. These include reorganization authority, the power to privatize government functions, and greater authority to influence independent state agencies than the President would have over federal counterparts. Governors typically have a more firmly grounded directive power over the policy content of administrative decision making. Moreover, because of overlap in the domains of state and federal regulatory concern, these authorities effectively give governors power to significantly “resist or advance key federal government programs.” (P. 19.) Continue reading "The Age of Imperial Governorship?"

Factoids, Alternative Facts, and the Truth

Jun 9, 2017 William FunkAdministrative Law

William Funk

When President Trump declares that he had the largest electoral college victory by a Republican since President Reagan, or that but for the 3 to 5 million illegal votes he would have won the popular vote, or that he had the largest inauguration crowd ever, everyone has come to learn that these “alternative facts” are not to be trusted. But when the Wall Street Journal publishes articles purporting to show that securities defendants are considerably more likely to lose when the Securities and Exchange Commission (SEC) sues them in administrative proceedings than when it sues them in court, because of the SEC’s “home-court” advantage before its ALJs, people take it seriously. So seriously indeed that the media, scholars, and even judges cite to the articles as established fact. But it’s not, and we have Professor Urska Velikonja to thank for establishing that.

To begin, while the brouhaha occasioned by the Journal articles has been centered around the SEC, and largely its enforcement efforts under the now controversial Dodd-Frank Act, the underlying thesis – that defendants do not get justice in administrative proceedings before ALJs, because those ALJs are biased in favor of their employer – would apply government-wide, not just to the SEC. And if given credence, this thesis would undermine what has been an essential aspect of administrative law for more than a century – administrative enforcement subject to judicial review as an alternative to executive actions in court for judicial enforcement. In other words, the stakes are high, and the truth, not factoids, is critical. Continue reading "Factoids, Alternative Facts, and the Truth"

The President’s Power of the Purse

May 16, 2017 Anne Joseph O'ConnellAdministrative Law

Anne Joseph O’Connell

The younger generation of administrative law scholars is frighteningly good. They provide helpful motivation to step up one’s own game but also opportunities to marvel in the work they are doing. One of my favorite scholars to read is Eloise Pasachoff. (A note: we are not friends. I think I have met her briefly in person only once.) Her latest insightful article examines the president’s power of the purse.

Pasachoff focuses on the Office of Management and Budget’s (OMB) role in the agency budget process. Specifically, she describes seven levers of OMB control, finds the process lacking on certain normative criteria, and then proposes reforms to the political branches and the administrative state to improve accountability. If OMB’s regulatory review worries you, Pasachoff has bad news, arguing that OMB’s budget role is more problematic. Continue reading "The President’s Power of the Purse"

Reviving and Refining a Pragmatic Approach to Finality

Apr 17, 2017 Richard MurphyAdministrative Law

Richard Murphy

Whenever I hear the phrase “force of law” in administrative law, I am inclined to reach for my wallet. Agency statutory interpretations with the “force of law” net Chevron deference; those lacking such force are stuck with Skidmore respect. Legislative rules have the “force of law,” but interpretive rules and general statements of policy (a/k/a guidance documents) do not. And then there is the second prong of the Bennett test for the finality of agency action, which checks whether an action has determined legal rights or obligations or otherwise has legal consequences. In other words, this prong checks whether the agency action has the “force of law.” It is not a coincidence that each of these corners of administrative law is something of a mess. The concept of “force of law” limits application of Chevron, requirements for notice and comment, and the availability of judicial review. But, often enough, courts encounter situations in which this approach seems under-inclusive. For instance, they confront agency interpretive rules that have such large practical impacts that they seem like they should be subject to judicial review—even though, technically lacking the “force of law,” they arguably should be regarded as non-final under Bennett. To accommodate such cases, courts sometimes stretch and tear the “force of law” concept, leaving doctrine confused and confusing.

Fortunately for us, Professor Bill Funk has written a concise and excellent essay, Final Agency Action after Hawkes, that offers a great deal of insight on how to clean up one of these messes. His jumping off point is the Supreme Court’s recent decision in United States Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807 (2016), which held that “jurisdictional determinations” (JDs) issued by the United States Army Corps of Engineers stating whether land contains “waters of the United States” constitute final agency actions subject to review under the APA. This opinion strongly highlights but does not resolve the tension between formalism and pragmatism that has plagued the doctrine of finality. Professor Funk’s essay diagnoses this tension, carefully traces its roots, and offers several thoughtful suggestions for resolving it. Continue reading "Reviving and Refining a Pragmatic Approach to Finality"

The Surprising Origins of the Interstate Commerce Commission

Mar 20, 2017 Jack BeermannAdministrative Law

Jack Beermann

Many law review articles fail to live up to the promise of their titles or abstracts, leaving disappointed readers in their wake. Others have titles that hide the ball. Behind the wordy and somewhat bland title of Jed Shugerman’s 2015 article—The Dependent Origins of Independent Agencies: The Interstate Commerce Commission, the Tenure of Office Act, and the Rise of Modern Campaign Finance—lies a fascinating new take on the origins of independent agencies.

The identification of the Interstate Commerce Commission (ICC) as the first modern independent regulatory agency is familiar to scholars of American administrative law. The ICC, created in 1887, was the first federal agency with the hallmarks of independence—multiple commissioners appointed by the President with the advice and consent of the Senate, staggered terms of specified duration (six years in this case), removal by the President only for “inefficiency, neglect of duty, or malfeasance and office,” and a requirement of bipartisan membership. Continue reading "The Surprising Origins of the Interstate Commerce Commission"

Breaking News: New Form of Superior Agency Guidance Discovered Hiding in Plain Sight

Feb 16, 2017 Michael E HerzAdministrative Law

Michael E Herz

For decades, controversy has brewed over agency (ab)use of and (over)reliance on guidance documents. On one account, agencies turn to guidance in an end run around notice-and-comment requirements, producing de facto legislative rules without either public input or, at least in some cases, judicial scrutiny. On another, guidance documents are good government in action, a helpful and illuminating benefit. In Preambles as Guidance, Kevin Stack does not take sides in this debate. But he does helpfully remind us that there is one type of guidance that (a) is not subject to the standard critique and (b) is often not appreciated as guidance at all. This overlooked creature, hiding in plain sight, is the preamble that accompanies every final rule.

The article is an exercise in APA originalism. Particularly since State Farm, the dominant understanding of the preamble has been that its central function is justificatory—in order to withstand judicial review, the agency must respond to significant comments, show that it engaged in reasoned decisionmaking, and thoroughly explain itself. But the APA’s requirement of a “statement of basis and purpose,” 5 U.S.C. §553(c), suggests a rather different goal: clarifying and helping readers understand the rule. Stack quotes the Attorney General’s Manual on the APA: “The required statement will be important in that the courts and the public may be expected to use such statements in the interpretation of the agency’s rules.” Stack’s article is an extended endorsement and elaboration of this model of rulemaking preambles, providing a clear, convincing, and elegantly written reconceptualization of a basic feature of agency rulemaking. Continue reading "Breaking News: New Form of Superior Agency Guidance Discovered Hiding in Plain Sight"

Rethinking Remedies

Jan 17, 2017 Kathryn WattsAdministrative Law

Kathryn Watts

We have all heard the saying that you “don’t need a sledgehammer to kill a gnat.” Yet, when it comes to fashioning remedies for agencies’ transgressions of administrative law principles, the courts often use the equivalent of legal sledgehammers to remedy agency transgressions—no matter how minor the transgressions. This, at least, is the picture painted by Professor Nicholas Bagley in his draft article titled Remedial Restraint in Administrative Law, which will be published in 2017 in the Columbia Law Review.

As Professor Bagley’s article carefully describes, when a court determines that agency action violates the Administrative Procedure Act (APA), the usual response is for the reviewing court to reflexively invalidate the agency action and to remand to the agency. Administrative law’s adherence to this rigid, rule-like approach to remedies—one that generally vacates and remands without pausing to ask how the agency’s mistake harmed or prejudiced the complaining party—means that courts “treat every transgression as worthy of equal sanction.” (P. 4.) This, in turn, leads to what Professor Bagley perceives as a frequent mismatch between the underlying APA violation and the harshness of invalidating the agency action.

Until I picked up Professor Bagley’s piece, I must admit that I had not given the question of remedies in administrative law much sustained or critical thought. And, as it turns out, I am not alone. Indeed, as Professor Bagley describes it, “systematic inattention” plagues remedial questions in administrative law. (P. 2.) This is the main reason why I highly recommend that you read his article. Unless you are unlike most administrative law observers, the article will likely push you to consider issues that you have not carefully thought through before despite their central importance to administrative law disputes. Continue reading "Rethinking Remedies"