Category Archives: Administrative Law
Apr 29, 2025 Wendy WagnerAdministrative Law
Nikhil Menezes & David Pozen,
Looking for the Public in Public Law, _
U. Chi. L. Rev._ (forthcoming, 2025), available at
SSRN (Oct. 02, 2024).
If you have ever advocated for a greater “public” role in administrative law without specifying who that public actually is or how they might realistically engage, then Nikhil Menezes’ and David Pozen’s terrific new article, Looking for the Public, is a must-read. Menezes and Pozen call out our bad habits, trace the many adverse consequences that result from our imprecision, and challenge us to do better while offering concrete suggestions for how we might do so. Their analysis makes it clear that until we address the phantom public problem, well-meaning efforts to create more inclusive or public-spirited policies and processes will be missing the most critical ingredient of all—evidence that the policies or processes actually benefit a “credible public.”
Looking for the Public begins by tracing how, despite our reliance on the public as the lodestar for virtually every policy and process in administrative law, lawmakers and scholars regularly appeal to the public without providing evidence-based accounts of who the public is or how they might engage. Efforts to ground policy or accountability mechanisms in “public opinion,” the “public interest,” and “public participation” often neglect to locate these same publics, while at the same time steadfastly ignoring mounting literature that suggests the public is absent or not credibly represented. Continue reading "The “Phantom Public” Exposed and Transformed"
Apr 1, 2025 Michael E HerzAdministrative Law
Susan C. Morse,
Time Bars for Administrative Procedure Claims After Corner Post, 114
Calif. L. Rev. __ (forthcoming 2026), available at
SSRN (Jul. 18, 2024).
In recent terms, the Supreme Court has had its nose to the grindstone, transforming American administrative law. In a series of striking decisions, it has created the major questions doctrine, overruled Chevron and reined in Auer, shifted toward the elimination of independent agencies and a full-throated endorsement of the unitary executive theory, come close to remaking the nondelegation doctrine, reinvigorated arbitrary-and-capricious review, and opened the courthouse doors to challenges to regulations issued long ago. Most of these developments have spawned a flurry of academic commentary. The major questions doctrine in particular has created an itch it seems everyone needs to scratch. And overruling Chevron has given all those who had written about the case in the past (which is practically everyone) a chance now to write about its demise.
In the face of this tsunami, what is a poor JOTWELL reviewer to do? How to select the best from among them? It can’t be done. (Though, as Jack Beermann has written, if you want to understand the major questions doctrine you can’t go wrong by starting with Anita Krishnakumar.) But there is one exception. When it comes to Corner Post, there is a standout article. While others have been hypnotized by the shiny new objects of the MQD and Loper Bright, an undistracted Susan Morse has kept her attention focused where it has been for a couple of years. Her latest, Time Bars for Administrative Procedure Claims After Corner Post is a standout not only because, let’s be honest, there is not a lot of competition, but because it is so good. Continue reading "Avoiding the Demon Lurking Around the Corner (Post)"
Feb 26, 2025 Mila SohoniAdministrative Law
Since the Supreme Court overturned Chevron in Loper Bright, the administrative law community has been consumed with the question of what will come next—and how much it will differ from what has gone before. Some predict that deference by courts to agencies will persist, albeit in renamed or reconceptualized form. Some worry that the combination of Loper Bright with other cases decided last term will empower courts to kneecap regulatory schemes, both old and new. Others posit that agencies will turn to regulatory tools that bypass whatever pitfalls may emerge as a consequence of Loper Bright and its brethren.
As scholars and policymakers grappled with the past term’s implications for federal agency power, Professor Adam Zimmerman’s Ghostwriting Federalism arrived to remind us that the reach of administrative influence extends far beyond the realms of formal rulemaking and judicial deference. This rich and thought-provoking new article is about much more than the post-Loper Bright world. The paper points out a great number of routes — fifty, to be precise — that agencies might use to promote policy objectives even in a world of federal courts inhospitable to federal regulatory power. Continue reading "Re-Routing Power"
Feb 3, 2025 Jack BeermannAdministrative Law
When the sun sets in New York City, it rises in Tokyo. Okay, maybe not exactly, but you get the idea: setting somewhere, rising somewhere else. Now substitute Chevron for N.Y.C. and the Major Questions Doctrine for Tokyo. For the past forty years, administrative law scholars have been arguing over Chevron, and now that the sun has set on that doctrine, it’s time to turn our attention to the new rising sun, the Major Questions Doctrine (“MQD”). The sudden emergence and prominence of the MQD in administrative law has led scholars to ask just what kind of legal doctrine the MQD is. If the voluminous scholarship on Chevron is any indication, there will be much, much more to come.
Sometimes, to figure out what something is, you first have to figure out what it isn’t. That is what Professor Anita Krishnakumar has helped us do with her excellent article What the New Major Questions Doctrine is Not. In this article, Professor Krishnakumar persuasively argues that neither scholars nor jurists have provided convincing characterizations of the doctrine. After illustrating how all attempts thus far to categorize the MQD have failed, she offers her own tentative characterization, recognizing that a definitive answer is impossible because it’s relatively early in the life of the current MQD and because the Court’s opinions invoking the MQD are somewhat inconsistent and unclear, making a definitive characterization impossible. Remind anyone of Chevron scholarship? Continue reading "What the Hell is the Major Questions Doctrine?"
Dec 13, 2024 Richard MurphyAdministrative Law
Ninety years ago, a unanimous Supreme Court thought it obvious that Congress has constitutional authority to restrict presidential removal authority over FTC Commissioners because, without such limits, the President would have unconstitutional power to direct the FTC’s quasi-legislative and quasi-adjudicative functions. Humphrey’s Ex’r v. United States, 295 U.S. 602, 628 (1935). These days, thanks in large part to a series of executive orders issued over the last fifty years, it is broadly accepted that presidents have power to direct agency rulemaking discretion, at least if we exclude independent agencies (which, on a closely related note, are hanging on to their independence by the thinnest of constitutional threads). We live in an “age of presidential administration.” (P. 2221).
In The Making of Presidential Administration, Professors Ahmed, Menand, and Rosenblum (collectively, “AM&R”) provide a fascinating, critical retelling of this transformation that focuses on the roles of politics and ideology in driving institutional and legal development. Plus, they accuse Justice Kagan of committing Whig history. Whigs, as note 685 explains, like to “present historical arcs as ‘progressive,’ moving from primitive pasts to enlightened presents.” (P. 2212 n. 685). Continue reading "Wait a Second – Who Put The President in Charge of Everything?"
Nov 27, 2024 Edward RubinAdministrative Law
The American labor movement has been revitalized in the past few decades. Detached at its outset by American exceptionalism from the ideology that supported European movements, and content to rest upon its success in obtaining the Wagner Act, it settled into a defensive mode following World War II, failing to move beyond its traditional strategies or build alliances with the progressive forces of civil rights and feminism. But labor is now demonstrating new energy and imagination, organizing aggressively among previously unrecruited workers in firms such as Starbucks, Amazon, and Walmart, and among previously excluded groups such as agricultural workers, domestic workers, gig workers, and public employees.
In Constitutional Clash: Labor, Capital, and Democracy, Kate Andrias documents various features of labor’s revival. She then argues that these efforts are not merely advocacy for a particular group of Americans, as extensive as that group may be, but also a reconceptualization of our constitutional and administrative order. With respect to constitutional rights, she identifies labor’s demand that the right to unionize should no longer be seen as the creature of statute, but as a fundamental entitlement of all employees, as it is in the U.N. Universal Declaration of Human Rights. Intrinsically related, and thus equally fundamental, is the right to strike. Labor leaders also insist on free speech in the workplace, not only as a necessary adjunct of the right to organize, but also to provide workers with personal autonomy and the opportunity for self-expression. They demand that the arbitrary and oppressive practice of at-will dismissal be replaced by due process protection. Going further, Andrias perceives labor’s minimum wage demands and associated calls for paid sick time, parental leave, and vacation time as potentially grounded on a constitutional right to minimal basic needs. Continue reading "The Labor Movement’s Reconceptualization of Constitutional Rights and Administrative Policy"
Oct 14, 2024 Margaret KwokaAdministrative Law
Most arms of government are subject to stringent transparency requirements in an effort to improve public accountability and, relatedly, public trust. For example, the Freedom of Information Act requires public access to most government records, and the Administrative Procedure Act requires agency explanations for final actions such as new regulations or adjudicatory decisions. By contrast, other powerful institutions in society, namely businesses and corporations, are required to reveal very little about their operations or publicly to justify their positions. Paradoxically, though, the public distrusts government far more than these opaque actors and believes government is incompetent, at best, and nefarious, at worst.
Shedding remarkable light on the underlying reason for this illogical result is a new article, The Submerged Administrative State, by Gabriel Scheffler and Daniel Walters. Scheffler and Walters persuasively argue that a significant contributing factor to the lack of public trust in government is that the work of administrative agencies is “submerged.” Some scholars have studied the incomprehensibility of government documents and disclosure to the public, while others (myself included) have examined the failures of transparency laws. What makes Scheffler and Walters’ approach to studying the visibility of government unique, though, is their ability to deftly amalgamate a variety of legal constraints, doctrines, and incentives that push agency work under the radar. Indeed, they convincingly demonstrate that this phenomenon works to the detriment of government by breeding distrust among the citizenry. Continue reading "Surfacing Agencies"
Sep 12, 2024 Emily BremerAdministrative Law
Jonathan Petkun & Joseph Schottenfeld,
The Judicial Administrative Power, 93
Geo. Wash. L. Rev. ___ (forthcoming), available at
SSRN.
What is administrative power and where does it fit within the federal government’s tripartite structure? These questions are difficult because the Constitution seems to contemplate only three sovereign powers—legislative, executive, and judicial—each vested in a separate branch of the federal government. As Jerry Mashaw memorably put it, “there is a hole in the Constitution where administration might have been.” Administrative law deals with the many questions raised by this deficit, and it usually examines the work of executive branch agencies and the boards and commissions that execute the law with greater independence from the White House. In short, a major premise of administrative law is that “administrative power” is at home in Article II.
In The Judicial Administrative Power, which is forthcoming in the George Washington Law Review, Jonathan Petkun and Joseph Schottenfeld find administrative power in a different place: Article III. This is not an article about judicial review of agency action—it’s about administrative institutions and activities wholly internal to the judicial branch. It’s a terrific contribution to a growing literature that recognizes the reality that bureaucracy and administrative power are often found outside of Article II’s core territory. For example, Anne Joseph O’Connell has examined Bureaucracy at the Boundary, 162 U. Pa. L. Rev. 841 (2014), between government and the private sector, while Jesse M. Cross & Abbe R. Gluck, have uncovered The Congressional Bureaucracy, 168 U. Pa. L. Rev. 1541 (2020). Continue reading "Toward a Cross-Branch Perspective on Administration"
Aug 7, 2024 Christopher WalkerAdministrative Law
If it is true that the Roberts Court overrules one precedent per year, Humphrey’s Executor is likely one of its next targets. Nearly ninety years ago, the Supreme Court in Humphrey’s Executor upheld the constitutionality of statutory for-cause removal protections for the multimember heads of the Federal Trade Commission (FTC). That precedent allowed Congress to continue to insulate the leaders of so-called independent agencies from at will firing by the president. Many progressives view Humphrey’s Executor as critical for preserving expert-driven regulatory governance insulated from excessive politics. Many conservatives, by contrast, view Humphrey’s Executor as a direct threat to political accountability through presidential control.
As the debate over Humphrey’s Executor intensifies, one may reasonably wonder whether independent agencies are as great as progressives believe or as dangerous as conservatives fear. In The Independent Agency Myth, Neal Devins and David Lewis shed some important empirical light on those questions. Based on two large surveys of agency officials, they conclude that “the independent agency model no longer works; most independent agencies are not particularly expert, not particularly influential, and their policies and policy-making processes are subject to (not insulated from) elected branch oversight and manipulation.” (P. 1309.) This conclusion is reminiscent of my colleague Dan Crane’s take that today’s FTC “bears almost no resemblance to the Progressive-technocratic vision articulated by the [Humphrey’s Executor] Court. The Commission is not politically independent, uniquely expert, or principally legislative or adjudicative.” Continue reading "A World Without Humphrey’s Executor?"
Jul 8, 2024 Jodi ShortAdministrative Law
Catherine Baylin Duryea,
Emergency Oversight (May 20, 2024), available at
SSRN.
To ward off the dread that engulfs me when I contemplate the Court’s anti-administrative decisions and agenda, I love to read what amounts to regulatory fan fiction. Once, there was a time when administrative agencies roamed the earth, controlling the U.S. economy in minute detail. This was not just a rhetorical flourish or some feared dystopia lying down the treacherous slippery slope of judicial deference to agencies. It was life. What was that like? How did we survive it? Could it happen again?
Catherine Duryea’s article, Emergency Oversight, delivers these pleasures and more. Duryea analyzes the Emergency Court of Appeals (ECA), a specialized court that operated from 1942-1961 with exclusive jurisdiction to adjudicate challenges to price and rent regulations promulgated by the Office of Price Administration (OPA). OPA administered an extensive system of price and rent control regulations during WWII to thwart wartime inflation and ensure adequate wartime production. These regulations were promulgated under statutory authority delegating to the OPA’s Price Administrator the power to set maximum prices at a level that would “be generally fair and equitable,” giving “due consideration” to prices as they existed during a specified baseline time period. OPA regulations touched every aspect of American life during the war, “from what people ate for breakfast to what clothes they wore” (P. 13), to what rent they could charge for use of a refurbished outhouse. OPA had civil and criminal authority to enforce its price regulations. Continue reading "Through the Looking Glass: A Shared Vision for Economic Regulation"
