Category Archives: Administrative Law
May 16, 2014 William FunkAdministrative Law
Kathryn E. Kovacs,
Superstatute Theory and Administrative Common Law, 90
Indiana L. J. (forthcoming 2014), available at
SSRN.
Most administrative law aficionados would think of the Administrative Procedure Act as a “superstatute,” but they might not all focus on what that might mean. Kathryn Kovacs has undertaken to tease the meaning of the APA as a superstatute and address the implications of such a characterization. They might not be what you would imagine.
Professor Kovacs begins by asking to what extent is administrative law “common law.” The APA is, of course, a statute, but it is viewed as largely codifying the then-existing common law. Moreover, after its passage courts continued to develop a common law of administrative law both to flesh out the ambiguous provisions of the APA and quite clearly to add on to them. While Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978), may have drawn the curtain on new judicial inventions to administrative common law, it did not repeal those that had become well ingrained in the case law. Professor Kovacs focuses on two such inventions that have no basis in the text or history of the APA: deference to the military in matters subject to the APA and the ripeness doctrine. Continue reading "The APA as “Superstatute” and What Does That Mean?"
Apr 16, 2014 Mark SeidenfeldAdministrative Law
Over the past several decades, many scholars have weighed in on benefits and detriments of authorizing private parties to sue to enforce federal regulatory standards. They often take either of two opposing positions: Some argue that private enforcement is necessary to supplement underfunded and perhaps captured agency enforcement mechanisms; others contend that private enforcement undermines social welfare or even statutory goals by sacrificing officials’ prosecutorial discretion not to pursue cases that, while technically justified, would not further regulatory goals. Few scholars, however, have written about the trade-offs triggered by a choice between public and private enforcement.
In Agencies as Litigation Gatekeepers, David Engstrom views the issue as one of when and how agencies should control the use of private enforcement. He is not the first to write about vesting agencies with such gatekeeper functions. But, others who have written on the subject generally have done so within the context of a particular regulatory program or litigation regime. Agencies as Litigation Gatekeepers views the structure and control of private enforcement as a unique kind of regulatory problem that extends potentially to every regulatory program. Doing so allows the article to develop some theoretical insights into how private enforcement might be structured and how agencies might best further the use of private enforcement mechanisms. Continue reading "Rethinking the Role of Agencies in Private Regulatory Enforcement"
Mar 17, 2014 Edward RubinAdministrative Law
Louis J. Virelli III, Deconstructing Arbitrary and Capricious Review, 92 N.C.L. Rev. (forthcoming, 2014), available at SSRN.
The Administrative Procedure Act’s “arbitrary and capricious” standard has been a source of power for the courts, but also a source of bewilderment. It is a source of power because it provides courts with the authority to set aside agency action and, in particular, agency rulemaking, perhaps the most important and characteristic tool of regulatory governance. It is a source of bewilderment because its defining terms are enigmatic. Fairly early in its history, the D.C. Court of Appeals interpreted it as requiring courts to take a “hard look” at the agency’s action. Despite this formulation’s popularity, it has failed to dispel the mystery, first because it is excessively metaphorical, but even more seriously because it is deeply ambiguous. Does it mean that the court must take a hard look at the way the agency reached its decision (a procedural hard look), or rather that the court is insisting that the agency take a hard look at the evidence and arguments being presented to it (a substantive hard look)? The Supreme Court’s decision in Motor Vehicle Manufacturers Assoc. v. State Farm Ins. became the leading decision on the subject because it parsed the substantive hard look standard, providing at least some operationally defined criteria by which the agency’s application of the evidence can be assessed.
Given the importance and ambiguity of the arbitrary and capricious test, it is hardly surprising that the scholarly literature on the subject is voluminous. One approach that commonly appears is the effort to articulate a single test or standard that would enable courts to determine whether an agency decision is arbitrary or capricious. In this innovative and insightful article, Louis Virelli adopts the opposite approach. His idea is to multiply the number of considerations that the arbitrary and capricious test includes, combining both substantive and procedural standards. The point of this proliferation is not to make judicial review more demanding; he agrees with the prevailing view that the agency is the principal decision maker in our system and is entitled to considerable deference from the judiciary. But he argues that the administrative decision-making process necessarily consists of various discrete, qualitatively different steps, and that the standard for arbitrary and capricious action should vary in accordance. Thus, the hard look doctrine should be viewed as “a collection of more targeted inquiries into specific aspects of agency action.” Continue reading "Viewing the Arbitrary and Capricious Test as a Set of Function-Specific Criteria"
Feb 10, 2014 Linda JellumAdministrative Law
Gary Lawson & Stephen Kam, Making Law Out of Nothing at All: The Origins of the Chevron Doctrine, 65 Admin. L. Rev. 1 (2013), available at BePress.
If you are teaching administrative law this semester, you can look forward to a riveting discussion of Chevron. There have been volumes written on this topic, and here I plead guilty. But if you will indulge me for a moment, I’d like to recommend that you read one more article about Chevron.
Professor Gary Lawson and former student Stephen Kam collaborated to write Making Law Out of Nothing At All: The Origins of the Chevron Doctrine. Their mission is to explain why the Chevron decision is irrelevant to the Chevron doctrine. They write not to praise or criticize the case, but “to bury it.” Or, to put it another way, they explain why one cannot resolve the many questions relating to the Chevron doctrine by examining the Chevron decision. In their article, Lawson and Kam elucidate how the lower courts, particularly the D.C. Court of Appeals, transformed the unrevolutionary Chevron case into the revolutionary Chevron doctrine within just two short years. Continue reading "Judge Wald and Justice Scalia Dance the Chevron Two-Step"
Jan 15, 2014 Richard MurphyAdministrative Law
Lisa Heinzerling, Inside EPA: A Former Insider’s Reflections on the Relationship Between the Obama EPA and the Obama White House, Pace Envtl. L. Rev. (forthcoming), available at SSRN.
Ever wondered what it is like—really like—to be an agency official confronting review by the Office of Information and Regulatory Affairs (OIRA) of your agency’s rule? Readers of JOTWELL’s administrative law blog are disproportionately likely to be part of the small group that wonders about such things, and this post has some very good news for them.
Surely, the best way to find out what it is really like to run a rule through OIRA would be to become an insider, serving as a high-ranking official at a major rulemaking agency. Most of us will never have that option. Fortunately for outsiders, a leading administrative law scholar, Professor Lisa Heinzerling of Georgetown University Law Center, did. She left academia for two years to serve as Senior Climate Policy Counsel to EPA Administrator Lisa Jackson from January to July 2009 and then as Associate Administrator of the Office of Policy from July 2009 to December 2010. Now back in the academic fold, she has written a fascinating account of the way that centralized White House review has affected agency rulemaking during the Obama administration. Continue reading "What Does It Feel Like To Have OIRA Review Your Rule?"
Dec 3, 2013 Adrian VermeuleAdministrative Law
Margo Schlanger, Offices of Goodness: Influence Without Authority in Federal Agencies, U. Mich. Pub. L. Res. Paper No. 353 (September 9, 2013), available at SSRN.
Margo Schlanger is a law professor at Michigan well-known for her work on prisons, structural reform litigation, and civil liberties, but not (yet) on administrative law as such. Perhaps for precisely that reason, she has given us here a novel, plausible and important account of a new species of administrative institution, one that administrative lawyers have heretofore failed to describe in general terms. A “new” species not in the sense that the species is new to the world, of course, but in the sense that it is newly identified by theory. Field zoologists discover species or traits of species that complicate or overturn established theoretical taxonomies; W.H. Caldwell famously proved that the platypus is a mammal that nonetheless lays eggs (“monotremes oviparous, ovum meroblastic”—so ran the immortal telegram). Likewise, field research on institutional design in the wild often does more for the progress of knowledge than a dozen nth-decimal refinements on whiteboard models of administrative interaction.
The novel institutional form here is the “Office of Goodness,” an office embedded within a larger agency and tasked with promoting or enforcing an extrinsic value that is orthogonal to the agency’s mission, or even one that constrains the agency’s mission. Schlanger headed the Office of Civil Rights and Civil Liberties embedded within the Department of Homeland Security from 2010 to 2012, and she draws upon her personal experiences with the effort to temper the imperatives of security by a measure of attention to liberty and security. But there are no war stories here, only informed illustrations of the larger theme. And Schlanger identifies similar offices from elsewhere in the government. Continue reading "Soft Institutional Design"
Nov 1, 2013 Richard PierceAdministrative Law
Michael A. Livermore, Cost-Benefit Analysis and Agency Independence, 81 U. Chi. L. Rev. (forthcoming, 2014), available at SSRN.
The Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) has been applying cost-benefit analysis (CBA) to major rules issued by executive branch agencies for over thirty years. The practice has long been controversial among legal academics but the debates have taken place against a generally-agreed set of beliefs about the effects of OIRA application of CBA—it increases the power of the President to control policy making by the bureaucracy. Michael Livermore’s meticulously researched and well argued article challenges this enduring belief.
Livermore argues that the relationship between OIRA application of CBA to major rules and presidential influence over policy making by the bureaucracy is far more complicated than the standard account can capture. He contends that the practice has actually increased agency autonomy by providing agencies a means of protecting themselves from presidential control. In Livermore’s view, the practice of OIRA application of CBA to agency rules provides agencies with a “safe harbor” they can access by dominating the process for developing the methodology government uses to apply CBA. Continue reading "What Is the Real Effect of OIRA Application of Cost Benefit Analysis?"
Oct 2, 2013 Kathryn WattsAdministrative Law
Kent H. Barnett, To the Victor Goes the Toil—Remedies for Regulated Parties in Separation-of-Powers Litigation, 92 N.C.L. Rev. (forthcoming, 2014), available at SSRN.
This coming Term, the U.S. Supreme Court is set to decide National Labor Relations Board v. Noel Canning, a case involving the constitutionality of the President using his recess appointment power to fill various vacancies on the National Labor Relations Board (NLRB). Unless the Court ducks the issues presented in the case, Noel Canning promises to become yet another important case in a string of recent decisions involving structural challenges to federal administrative agencies—challenges that have sought to limit agencies’ power based upon the Appointments Clause, the President’s recess appointment power, the President’s general Article II powers, and the judiciary’s Article III powers. For example, in 2010 in Free Enterprise Fund v. Public Company Accounting Oversight Board the Court held that the dual for-cause restrictions placed on removal of members of the Public Company Accounting Oversight Board (PCAOB) violated separation-of-powers principles. Similarly, in 2011 in Stern v. Marshall the Court held that a non-Article III bankruptcy court could not constitutionally enter a final judgment on a state-law tortious interference counterclaim.
Even though significant attention has been given to the constitutional merits of these and other recent cases, exceedingly little attention has been given by litigants, the courts and scholars to a subsidiary question lurking in the background of the cases: What should the proper remedy be when separation-of-powers violations are found to exist in the structures of federal administrative agencies? Professor Kent Barnett, an assistant professor at the University of Georgia School of Law, quite perceptively identifies this little-noticed question and begins to try to answer it in a forthcoming article titled To the Victor Goes the Toil—Remedies for Regulated Parties in Separation-of-Powers Litigation, which is soon to be published in the North Carolina Law Review. Given that the Noel Canning case is looming on the Court’s docket and various other structural challenges have been brought challenging the newly-formed Consumer Financial Protection Bureau (CFPB), Professor Barnett’s article is extremely timely. Indeed, it is a “must read” for courts and litigants involved in structural separation-of-powers cases as well as constitutional and administrative law scholars. Continue reading "Remedying Structural Separation-of-Powers Violations"
Aug 16, 2013 Christopher WalkerAdministrative Law
This coming year marks Chevron’s 30th anniversary. Westlaw reports that Chevron has been cited in over 66,000 sources, including in nearly 13,000 articles. Despite the ink already spilled, until now no one had empirically investigated the core assumption underpinning Chevron deference—that Congress actually intends to delegate interpretative authority to federal agencies when it leaves ambiguities in statutes the agencies administer.
Professors Abbe R. Gluck and Lisa Schultz Bressman recently sought answers to this question (and many others). They interviewed 137 congressional counsels, asking them 171 questions about the canons, legislative history, and administrative law doctrines. Their findings will appear in a two-part series in the Stanford Law Review. The 125-page part one was just published, along with a methods appendix, and there is a lot to like about this piece. Continue reading "Does Congress Really Mean To Delegate Interpretative Authority To Agencies?"
Jul 17, 2013 Jonathan WeinbergAdministrative Law
David Markell and Emily Hammond Meazell, Administrative Proxies for Judicial Review: Building Legitimacy from the Inside-Out, 37 Harv. Envtl. L. Rev. (forthcoming 2013), available at SSRN.
The great question underlying American administrative law is that of agency legitimacy. Administrative agencies, whose heads don’t answer to the voters and whose decisions for the most part are not subject to effective popular checks, have dubious democratic bona fides. Where do they get off, then, mandating rules of conduct and imposing punishments backed up by the coercive power of the state? A crucial part of the answer, in American administrative-law thinking, has rested on the institution of judicial review: We can trust agencies to exercise their delegated authority, the classic argument runs, and we can treat that authority as legitimate, because we can rely on courts to take action if the agencies step out of line.
But as administrative-law scholars well know, the judicial-review focus has limitations. David Markell and Emily Hammond Meazell, in their paper Administrative Proxies for Judicial Review: Building Legitimacy from the Inside-Out, note that few administrative decisions ever go before a court. Judicial review of most agency decisions is neither cost-effective nor practical; review of others is precluded by law. This, the authors urge at the beginning of their paper, is one of the “great paradoxes of administrative law,” raising the question, “What else is there to legitimize unreviewable agency action?” Continue reading "Assessing Agency Legitimacy"
