Category Archives: Administrative Law
Dec 2, 2016 Richard PierceAdministrative Law
Hannah J. Wiseman,
Negotiated Rulemaking and New Risks: A Rail Safety Case Study,
Wake Forest J.L. & Pol’y (forthcoming 2017), available at
SSRN.
Hannah Wiseman’s insightful case study has forced me to rethink my views both on negotiated rulemaking and, more broadly, on all forms of notice and comment rulemaking. Negotiated rulemaking (Reg-Neg) adds one important step—negotiation—to the familiar notice and comment process. Reg-Neg got a lot of attention, both positive and negative, a quarter of a century ago. Many agencies experimented with the process. The D.C. Circuit expressed its approval of Reg-Neg in its 1988 opinion in NRDC v. EPA, 859 F. 2d 156, and Congress legitimated the process by enacting the Negotiated Rulemaking Act of 1990, 5 U.S.C. §§ 561-570.
After attracting an initial flurry of scholarship—pro and con—and after an initial period in which many agencies tried the process, Reg-Neg seemed to disappear both from the scholarly literature and from agency practice. Professor Wiseman has found, and studied, an important context in which Reg-Neg continues to be used, with results that do not fit well with either the views of its supporters or its detractors. Continue reading "Rethinking Negotiated Rulemaking"
Nov 2, 2016 Mila SohoniAdministrative Law
Christopher J. Walker,
Legislating in the Shadows, 165
U. Pa. L. Rev. (forthcoming 2016), available at
SSRN.
It generally starts with a phone call. A Congressional staffer might ring up a federal agency and request the agency’s assistance in thrashing out the details of a new law. Usually, there’s already a working draft of the law; more rarely, the staffer just has parameters or specifications in mind for how the final law ultimately ought to look and what it ought to accomplish. Depending on the situation, the agency might send back a redlined mark-up of the draft bill, or else write a draft of the law from scratch. As the bill wends its way through Congress, the agency hovers on the sidelines, red pen in hand, ready and willing to offer additional technical drafting assistance as needed. The entirety of the exchange between staffer and agency—the request, the response, and any follow-ups—remains informal, off-the-record, undocumented, and confidential, hidden from view from the White House, from OMB, and (needless to say) from the public.
This is the zone of “Legislating in the Shadows” that Christopher J. Walker brings into the light in his thought-provoking forthcoming article. This article builds upon Professor Walker’s recent empirical study for the Administrative Conference of the United States (ACUS), which generated a list of recommendations that ACUS adopted in December 2015. In “Legislating in the Shadows,” Professor Walker moves from description to assessment and critique, deftly distilling from his findings their most pointed—and sometimes disquieting—implications for the doctrines of administrative law and statutory interpretation. Continue reading "The Devil is in the Details"
Oct 5, 2016 Christopher WalkerAdministrative Law
Aditya Bamzai,
The Origins of Judicial Deference to Executive Interpretation, 126
Yale L.J. (forthcoming 2017),
available at SSRN.
In his concurrence in Perez v. Mortgage Bankers, Justice Scalia reiterated his historical justification for Chevron deference (first articulated in his Mead dissent): “the rule of Chevron, if it did not comport with the [Administrative Procedure Act], at least was in conformity with the long history of judicial review of executive action, where ‘[s]tatutory ambiguities . . . were left to reasonable resolution by the Executive.’” In a must-read article forthcoming in the Yale Law Journal, Aditya Bamzai casts serious doubt on Justice Scalia’s (and many others’) understanding of Chevron’s origin story..
There is so much to like about this article, and one should really read the full article. But I’ll highlight four main takeaways. Continue reading "Chevron’s Origin Story"
Sep 6, 2016 Richard PierceAdministrative Law
Kent Barnett & Christopher J. Walker, Chevron
in the Circuit Courts, 115 Mich. L. Rev. (forthcoming 2017), available at
SSRN.
Kent Barnett and Chris Walker begin this fascinating article by describing the Chevron doctrine and its history. In its landmark 1984 opinion in Chevron v. NRDC, the Supreme Court announced a new, seemingly more deferential doctrine that it instructed lower courts to apply when they review agency interpretations of the statutes they administer. The Chevron opinion is one of the most cited opinions in history. It has been cited in “nearly 15,000 judicial decisions and in over 17,000 law review articles and other secondary sources.” (P. 2.)
Barnett and Walker agree with most scholars that the Supreme Court’s “choice to apply Chevron deference, as opposed to a less-deferential doctrine or no deference at all, does not seem to affect the outcome of the case.” (P. 4.) They note that the Supreme Court did not even mention Chevron in three-quarters of the cases in which it reviewed agency statutory interpretations during the twenty-two-year period immediately after it issued its opinion in Chevron. They then report the findings of their study—the largest empirical study of circuit court applications of Chevron ever undertaken. As they characterize the results of their study, what they call Chevron Regular seems quite different from Chevron Supreme. Continue reading "Circuit Courts Do Strange Things with Chevron"
Jul 22, 2016 Peter ShaneAdministrative Law
The passing of Justice Antonin Scalia removes from the Supreme Court its most strident modern advocate of the “unitary executive” idea—specifically, the view that Article II’s vesting of law execution power in the President forbids Congress to extend any such authority to individuals or entities not subject to “meaningful presidential control.” Printz v. United States, 521 U.S. 898, 922 (1997). I have long argued that this interpretation cannot be reconciled with our constitutional history. But an insightful, tightly argued new article by Leah Litman, a Harvard Law School Climenko Fellow and Lecturer in Law, demonstrates that this view of the separation of powers can also not be reconciled with the Court’s contemporaneous preemption jurisprudence. Put simply, despite the Court’s occasional pronouncements in separation of powers cases that “Article II requires the President alone to execute federal law,” the “preemption cases suggest that nonexecutive actors may likewise vindicate the public interest in seeing federal law enforced.” (P. 1293-94.)
Professor Litman’s thesis rests on an astute recognition of the relationship in separation of powers jurisprudence between two core ideas. One is the familiar truth that federal law execution is policy-laden at every stage. Implementing federal law entails the exercise of significant discretion, both in legal interpretation, Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), and in deciding whether to move forward in individual cases, Heckler v. Chaney, 470 U.S. 821 (1985). Indeed, but for the ubiquitous presence of discretion in federal law execution, the unitary executive ideal would presumably carry very little real-world punch. Continue reading "A Federalism Stake in the Heart of the Unitary Executive?"
Jun 23, 2016 William FunkAdministrative Law
Cass R. Sunstein and Adrian Vermeule,
The Unbearable Rightness of Auer
, U. Chi. L. Rev. (forthcoming 2016), available at
SSRN.
In 1945 the Supreme Court decided the case of Bowles v. Seminole Rock & Sand Co., in which it stated without citation to precedent or other explanation that, when the meaning of the words in an agency’s regulation are in doubt, “the administrative interpretation . . . becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Over the years, this language has been often quoted by the Supreme Court, including in 1997 by Justice Antonin Scalia in Auer v. Robbins. Subsequently, courts and commentators have usually referred to this doctrine as Auer deference, and until recently the doctrine generally occasioned little discussion in the courts except in some cases where there was a suggestion of a possible exception from the doctrine when the regulation in question was itself hopelessly vague. But recently, there has been a frontal attack on the Auer doctrine led by the late Justice Scalia and Justice Thomas and apparently viewed sympathetically by Justice Alito and the Chief Justice. Moreover, leaders in the House and Senate have introduced a bill essentially to overrule Auer.
Now come Professors Sunstein and Vermeule in The Unbearable Rightness of Auer to take up the cudgel in defense of Auer. Their article is the starting point for any further discussion of the Auer doctrine. Continue reading "Saving Auer"
May 27, 2016 Anne Joseph O'ConnellAdministrative Law
Margaret B. Kwoka,
FOIA, Inc., Duke L.J. (forthcoming 2016), available on
SSRN.
Congress may be gridlocked on many issues, but both parties are working hard to strengthen the Freedom of Information Act. Motivations differ, of course. According to the New York Times, Republicans are displeased with the State Department’s response to requests for then-Secretary of State Hillary Clinton’s emails while Democrats favor a stronger transparency statute.
Margaret B. Kwoka’s forthcoming article, FOIA, Inc., in the Duke Law Journal already has a place in the policy discussions (and in the NY Times). It should also have a place in research and teaching in Administrative Law. I am a strong proponent of teaching something about FOIA in the core Administrative Law class, focusing on its potential use as an oversight mechanism and as an information tool in the many cases that are excluded by the Federal Rules of Civil Procedure and the presumption of regularity from discovery. I warn students, however, that they should not be swayed by tales of disinfecting sunlight, mentioning briefly old studies about the use of FOIA by private parties to get information about other private parties. Continue reading "Disclosure about Disclosure"
May 12, 2016 Linda JellumAdministrative Law
Dan R. Meagher,
The Principle of Legality and a Common Law Bill of Rights—Clear Statement Rules Head Down Under (2015), available on
SSRN.
I decided to think outside the box this year with my recommendation, or more accurately, outside of our Country’s academy. About a year ago, an Australian Law Professor Dan Meagher contacted me about presenting his paper to our faculty at Mercer University School of Law. I’m very grateful that he did. Professor Meagher ended up visiting with us for a week this past fall as a visiting scholar. During that time, he provided one of the best development presentations that I have seen. His topic was interesting yet completely outside of most of our expertise. His presentation style was relaxed and fostered the interaction of the entire faculty. Perhaps the relaxing part should not be surprising: Australians are not necessarily known for being uptight. I chose to recommend his article to Jotwell readers because I found the topic interesting, the paper well-written, and the application of the legal doctrine a bit contradictory to the way we do things here in the U.S.
The title of his paper is The Principle of Legality and a Common Law Bill of Rights—Clear Statement Rules Head Down Under. In his article, Professor Meagher traces the evolution of the Australian Courts’ approach to protecting fundamental rights. This evolution is fascinating, controversial, and directly connected to both our Constitution and statutory interpretation principles. This history lesson begins with a simple point: “the Australian Constitution is a redraft of the American Constitution of 1787 with modifications found suitable for the more characteristic British institutions and for Australian conditions.” Our system of a government with separated powers was adopted. Importantly, however, the Australian framers consciously rejected, even deleted from a draft version, the American Bill of Rights. The framers rejected the American approach, believing that common law and a parliamentary form of government offered a superior and more democratic way to protect these rights. Professor Meagher describes the Australian Constitution’s development and the strong role that our Constitution played in the drafting process. That part of the paper should be interesting enough to Administrative Law Scholars who teach this aspect of the Constitution. But the story is much more interesting. Continue reading "Super Strong Clear Statement Rules Down Under"
Apr 28, 2016 Mark SeidenfeldAdministrative Law
Ever since courts have recognized the legitimacy of political influence on agency policymaking, scholars have struggled to formulate a model of Administrative Law that describes an appropriate balance between such influence and agency expertise. The current reigning consensus – the Presidential Control Model – fails to satisfy many critics, especially in light of recent Presidential assertions of greater and greater power over the apparatus of administrative government. More recently, the heightened partisanship of federal government has added to concerns that presidential control does not assure that the administrative state is sufficiently responsive to the general polity and the public interest. Thus, it is surprising that up until now few scholars have explicitly analyzed the role of political parties in the operation of the federal administrative state, and none have tried to use the workings of contemporary parties to formulate a normative account of how politics should inform agency policymaking. Political Parties and Presidential Oversight by Michael Livermore takes a large and impressive first step to fill that analytic vacuum.
Livermore begins by reviewing the replacement of the local, patronage-driven party system that existed prior to the Kennedy Administration, with the modern national, professional and programmatically driven party system. He then summarizes arguments that the modern party system, along with candidate-centered politics, will drive Presidential elections towards candidates that implement the policy preferences of the majority or, more precisely, the median voter. Livermore rejects the candidate-centered model because Presidents do not seem to implement unifying policy agendas that reflect the position of the median voter. He therefore reinvigorates a theory of “responsible party government.” Continue reading "Rethinking Parties and Politics in Administrative Law"
Mar 31, 2016 Richard MurphyAdministrative Law
Cynthia Barmore,
Auer in Action: Deference After Talk America, 76
Ohio St. L.J. 813 (2015), available at
SSRN.
Administrative law geeks know that Auer deference has been in trouble. This doctrine, which used to go by the much better name of Seminole Rock deference, instructs courts to defer to an agency’s interpretation of its own rule so long as the interpretation is not plainly erroneous. Its primary supporting intuition is that an agency should be better than anyone else at interpreting a rule that it drafted and implements. During the last five years of his life, Justice Scalia mounted a strong campaign to eliminate this doctrine, which he had come to regard as a terrible affront to separation of powers. Although Justice Scalia is now gone, his critique of Auer retains substantial support on the Court. Justice Thomas agrees with it; Justice Alito has expressed strong sympathy; and the Chief Justice might be on board, too.
But, before rushing off to dump Auer in the ashbin of administrative law history, those who prefer to take their separation of powers with a dash of functionalism might like to know: Just how are courts applying this deference doctrine these days, anyway? Fortunately, Cynthia Barmore has shed considerable light on this question in her article, Auer in Action: Deference after Talk America, which was just published in the Ohio State Law Journal. Her hard work reveals that affirmance rates under Auer have declined in recent years and are in line with the rates for other so-called “deference” doctrines. Courts do not, in short, seem to treat Auer as granting agencies free rein to abuse regulated parties with aggressive (mis)interpretations of their regulations. Continue reading "Counting Out Auer Deference"
