Category Archives: Administrative Law
Jun 20, 2024 Wendy WagnerAdministrative Law
Is the bureaucracy a deep state run by unaccountable bureaucrats? Most of us in administrative law think not, but when push comes to shove, we must concede that we have precious little idea of how agency staff operate on the ground to fulfill their statutory commands.
In The Accountable Bureaucrat, Anya Bernstein & Cristina Rodríguez (hereinafter B&R) step into this void and, in a manner reminiscent of the big reveal in the Wizard of Oz, expose the “man behind the curtain.” By asking the bureaucrats themselves how they transform “abstract statutes into concrete rules that govern conduct” (P. 1679), the authors make significant advances in our understanding of this important, but rarely studied world of bureaucratic discretion. Armed with a pre-prepared list of questions that structure their open-ended interviews, the authors (Bernstein holds a PHD in anthropology) canvass thirty-nine current and former employees (both political and career) from eleven different agencies, ranging from the Department of Homeland Security to the Environmental Protection Agency. (Pp. 1685-86.) B&R then code the transcripts and notes with a detailed rubric in search of patterns and behaviors that cut across the different regulatory programs. Continue reading "How Do Bureaucrats Exercise Policymaking Discretion? A Glimpse Inside the Black Box"
May 10, 2024 Jack BeermannAdministrative Law
Did you ever wonder how it came to be that people suspected of immigration violations are subject to arrest without a judicially issued warrant? That executive branch immigration enforcement officers themselves have the authority to issue enforceable arrest warrants? And further, how it came to be that alleged immigration law violators can be held in prolonged detention without a probable cause hearing before a neutral magistrate of any kind?
When I first encountered this set of related issues, I quickly learned the conventional wisdom, that based on a longstanding tradition and Supreme Court approval, immigration law is an exception to the Fourth Amendment’s requirements that only judicial officers can issue arrest warrants and that in cases of warrantless arrest, the arrestee must be brought before a neutral judicial officer within a reasonable amount of time, normally not to exceed 48 hours. Professor Lindsay Nash’s excellent recent article Inventing Deportation Arrests reveals, through meticulous historical and doctrinal analysis, that the conventional understanding is built on shaky legal and historical ground and is subject to serious abuse. The article is very well written and enlightening on an important subject that I suspect has been somewhat opaque to most scholars of administrative law. Continue reading "The Dubious Validity of the System of Deportation Arrests"
Apr 8, 2024 Michael E HerzAdministrative Law
Administrative law scholarship comes in many shapes and sizes. One distinctive type is the law review article that began life as a consultant’s report for the Administrative Conference of the United States (ACUS) and then was published in revised (read: more compulsively footnoted and obsessively bluebooked) form in a law review. The ACUS lineage is always visible in the final product: these articles are grounded on and often provide an overview of current practice, they are even-handed, and they contain real-world proposals for reform. On the other hand, they tend not to be wildly abstract, coin new terms (“I call this approach neo-tripartite hyper-realism”), or end up in the Yale Law Journal (with the occasional impressive exception or two as to the last).
Michael Asimow’s recent article on greenlighting—”the process whereby the heads of a combined-function federal regulatory agency determine whether to accept the staff’s decision to charge or not charge a target with a violation of law” (P. 227)—began life as an ACUS report, and it shows. It describes the practices of five different agencies, reviews the value and the risks of looking to agency heads to approve enforcement actions, and assesses a suite of possible structural arrangements that might preserve the former and minimize the latter. Continue reading "It Ain’t that Broke–Agency Heads’ Approval of Enforcement Actions"
Mar 14, 2024 Margaret KwokaAdministrative Law
Rebecca Green,
FOIA-Flooded Elections, 85
Ohio St. L.J. __ (forthcoming 2024); William & Mary L. Sch. Rsch. Paper No. 09-478, available at
SSRN (Oct. 3, 2023).
The Freedom of Information Act (FOIA) has been the subject of increasing controversy. Some scholars, like Mark Fenster in his recent illuminating work on transparency and populism, remain convinced it holds a singular place in protecting democracy and promoting accountability. Others, like Dave Pozen, are concerned it promotes regressive, anti-public-spirited outcomes. While my own work has defended FOIA’s continued indispensability, my research on who uses FOIA and why (upshot, it’s not journalists) is often cited as demonstrating that the law does not deliver the value we hope it will.
However, these larger structural critiques often set aside a nagging practical problem that can, at times, become centrally important: the use of FOIA for abuse and harassment of agency officials. In my own work, I have noted that occasional problems of this natures arise mostly with respect to state agencies, in particular public universities, in a way that it does not tend to at the federal level. But I have largely considered the issue an anomaly not necessarily meriting more structural reform. Still, instances involving alleged abusive FOIA requesters have seemingly been on the rise, moving behind the historic examples of targeting particular research at higher education institutions and now reaching into K-12 educational settings with respect to controversial curricula and, now, election officials. Enter Rebecca Green’s terrific new piece, FOIA-Flooded Elections, which takes on this seemingly intractable problem of abusive FOIA requests in the context of state and local election officials. Continue reading "Confronting FOIA Abuse"
Feb 14, 2024 Richard MurphyAdministrative Law
To start, please forgive a few preliminaries: The Constitution provides express instructions governing appointments of Officers of the United States but not about removals (other than by impeachment). Congress has often stepped into this gap by imposing limitations on the power of the President to remove agency officials. The Supreme Court upheld for-cause style limits on presidential removal authority from the New Deal up until the arrival of the Roberts Court. The Roberts Court, following a path blazed by Justice Scalia, adheres to the principle of the “unitary executive,” which holds that the power to remove agency officials is a necessary element of the “executive power” that Article II of the Constitution provides “shall be vested in a President.” Art. II, § 1, cl. 1. Accordingly, the Roberts Court has invalidated several statutory restrictions on presidential removal power in a series of high-profile cases. To support this embrace of the unitary executive, the Roberts Court has relied upon one precedent above all others, Myers v. United States, 272 U.S. 52 (1926). Chief Justice Roberts has characterized Myers as having “conducted an exhaustive examination of the First Congress’s determination in 1789, the views of the Framers and their contemporaries, historical practice, and our precedents up until that point.” Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2197 (2020). This “exhaustive examination” conclusively demonstrated that the President’s “executive power” must include a general authority to remove executive officials. Id. at 2197-2198.
In their terrific article, Becoming the Administrator-in-Chief: Myers and the Progressive Presidency, Professors Katz and Rosenblum take a blowtorch to this reading of Myers. On their account, President—whoops, sorry, Chief Justice—Taft’s 72-page majority opinion in Myers did not provide an accurate, originalist report on the Framers’ eighteenth-century expectations regarding the power of the presidency. Rather, Chief Justice Taft constitutionalized a twentieth-century, Progressive vision of the President as “popular tribune and chief administrator.” (P. 8.) Myers thus provides an example of, gasp, “living constitutionalism.” (P. 19.) And so does the Roberts Courts’ twenty-first century deployment of Myers for its own, not-so-Progressive ends. Continue reading "Myers, We Hardly Knew Ye?"
Jan 15, 2024 Mila SohoniAdministrative Law
Adam Crews,
The Executive Power of the Federal Courts, 56
Ariz. St. L.J. __ (forthcoming 2024), available at
SSRN (September 5, 2023).
As I write this Jot, it’s entry-level hiring season. Scores of exciting candidates are crisscrossing the country to present new papers, eat dinners, and tour campuses and neighborhoods. Over the years, I have come to observe that there are a few things that a candidate can reliably bet will occur during a job talk at my law school. Someone will point out your paper’s relevance to some completely unexpected area of law, or vice versa. Someone’s phone will ring while you are speaking—to the rest of the faculty’s collective mortification—and then be immediately, furiously silenced. And—if you are talking about a subject in constitutional law, administrative law, or federal courts—someone will probably ask you something about how your paper relates to INS v. Chadha.
Chadha is a staple touchpoint because it tees up a fundamental definitional conundrum that all three fields grapple with in various ways: what counts as executive power, or judicial power, or legislative power, in our system of government? If our legal system is one of separation of powers, it would seem to be important to know which is which. Yet, in the fashion of an ancient parable, the opinions in Chadha reach different answers concerning how to characterize the particular type of action at issue in that case. To the Court, an action by a house of Congress to veto a suspension of deportation seemed “essentially legislative in purpose and effect,” and therefore subject to bicameralism and presentment requirements. But, as Justice White pointed out, the Court’s opinion also characterized the suspension of deportation as an executive power; if that is the case, then why isn’t an action that merely blocks that suspension therefore an exercise of executive power, too? Justice Powell, for his part, saw things another way entirely: it was “clearly adjudicatory,” he wrote, for a house of Congress to decide whether or not Jagdish Chadha should or should not be deported. So Chadha was very much on my mind as I read The Executive Power of the Federal Courts, an interesting new paper by Adam Crews. Continue reading "Whose Power is it Anyway?"
Nov 30, 2023 Edward RubinAdministrative Law
Jed. H. Shugerman & Jodi L. Short,
Major Questions About Presidentialism: Untangling the “Chain of Dependence” Across Administrative Law, 65
B.C. L. Rev. __ (forthcoming, 2024) available at
SSRN (August 4, 2023).
The Roberts Court may well overturn the Chevron doctrine this Term, despite the affection for stare decisis that Chief Justice Roberts himself expressed in the related case of Kisor v. Wilkie. Against that backdrop, Professors Jodi Short and Jed Shugerman offer an analysis of why the Court’s major questions doctrine, a predecessor to interring Chevron, is inconsistent with another group of the Court’s opinions, which the authors describe as the Court’s presidentialism.
Their analysis is incisive. While addressed to a Court that has a rather cavalier attitude toward doctrinal coherence, the article’s convincing empirical evidence may encourage the Justices to be more thoughtful as they move into the post-Chevron phase of administrative law. In any event, it will certainly provide observers with insights for continued criticism of the Court, and perhaps provide this Court’s successor with guidance for repairing the damage. Continue reading "Major Contradictions at the Roberts Court"
Oct 27, 2023 Anne Joseph O'ConnellAdministrative Law
Nicholas R. Bednar & David E. Lewis,
Presidential Investment in the Administrative State, Am. Pol. Sci. Rev., available at
Cambridge University Press (Mar. 13, 2023).
Presidents are quite popular in administrative law these days, from Elena Kagan’s classic article, Presidential Administration, to the Supreme Court’s fixation on presidential control in its growing Appointments Clause and removal docket. As legal scholars dissect and debate the doctrinal and normative implications of presidential attention in agency decision making, we could benefit from knowing more about how that involvement actually plays out.
In Presidential Investment in the Administrative State, Nicholas Bednar and David Lewis provide critical empirical lessons for how Presidents invest strategically (or not) in agency capacity, which encompasses “the ability of an agency to perform the tasks delegated to it.” They show that Presidents are not simply public administration savants—trying only “to ensure effective policy implementation and avoid failure.” And they demonstrate that Presidents are not pure partisans—“work[ing] to increase capacity in agencies implementing policies the president likes and decrease capacity in agencies implementing policies the president opposes.” The lessons are messier. Continue reading "Agency Capacity"
Oct 4, 2023 Christopher WalkerAdministrative Law
Emily Chertoff,
Violence in the Administrative State, 112
Calif. L. Rev. __ (forthcoming 2024), available at
SSRN.
With all the changes swirling in administrative law, one trend seems to be getting less attention than perhaps it should: the death of regulatory exceptionalism in administrative law. For decades, many regulatory fields—such as tax, intellectual property, and antitrust—viewed themselves as exceptional, such that the normal rules of the road in administrative law do not apply. The Supreme Court and the lower courts have increasingly rejected such exceptionalism in many regulatory contexts, emphasizing that the Administrative Procedure Act (APA) and related administrative law doctrines are the default rules unless Congress has clearly chosen to depart from them by statute in a particular regulatory context.
Immigration exceptionalism, however, remains a puzzle. Not because administrative law does not apply. It does. But, as Jill Family has detailed, Congress has departed from the APA defaults in many respects. As a constitutional and interpretive matter, moreover, immigration regulation operates against the backdrop of the plenary power doctrine. As more administrative law scholars have turned to immigration law (and vice versa), deeper insights have emerged to better situate immigration regulation in the modern administrative state. Immigration law scholars and newer voices in administrative law have played a critical role in moving the field forward. Here, I want to highlight one such newer voice, Emily Chertoff, whose article Violence in the Administrative State makes a promising contribution. Continue reading "Revisiting Immigration Exceptionalism in Administrative Law"
Sep 6, 2023 Emily BremerAdministrative Law
Jodi L. Short, In Search of the Public Interest, 40 Yale J. Reg. 759 (2023).
Congress often instructs agencies to act in the “public interest,” but what does that mean? Does it mean anything at all? Professor Jodi Short tackles this in an important new article, In Search of the Public Interest. How one defines the term “public interest” matters, for as Short explains, it appears approximately 1,280 times in the U.S. Code. (P. 767.) Critics of the administrative state decry the term as vacuous—an indication of congressional abdication and unconstitutional delegation of legislative power. Proponents of the administrative state, on the other hand, view “public interest” standards as integral to sound regulatory schemes—a meaningful instruction to administrators that can help ensure Congress’s policy goals are achieved. The debate, which is often abstract and ideologically freighted, can seem intractable.
Short seeks to cut the Gordian Knot with an empirical analysis of how agencies have interpreted and applied “public interest” standards in the real world. She begins by offering a thorough yet concise overview of various theoretical approaches to defining the public interest, breaking them down into categories centered on substantive values, efficiency claims, and procedural arguments. This primer swiftly orients the reader to the contours of the broader debate, while providing a taxonomy for the subsequent analysis. The remainder of the article offers a real-world view of how a sampling of federal and state agencies have given the concept of the public interest content and effect. Continue reading "Finding the Public Interest (and the Rule of Law) in On-the-Ground Administration"
