Category Archives: Administrative Law

In Search of the Presidential Removal Power: What Venality (Offices as Property) Tells Us About the Constitutional Dogs that Did Not Bark and the Howling Hounds of Bureaucratic Accountability

Jul 26, 2023 Jodi ShortAdministrative Law

Jodi Short

Originalist scholars have been hard at work to backfill justifications for the Roberts Court’s pronouncement in Seila Law of an indefeasible presidential power to remove executive branch officers (a prominent recent example is Aditya Bamzai and Saikrishna Bangalore Prakash, The Executive Power of Removal). Unable to point to constitutional language authorizing (much less requiring) presidential removal, purported originalists have located this power provisionally in Article II’s broad grant of “The executive Power” to the President based in part on the argument that executive power, as understood by the Founders, undeniably encompasses the power to remove executive officers at will.

Into this consequential debate wades Jed Shugerman, with Freehold Offices vs. “Despotic Displacement”: Why Article II “Executive Power” Did Not Include Removal. Shugerman persuasively demonstrates that there was no general rule of indefeasible executive removal power prior to and at the founding. Instead, there was a mix of office types—from cabinet-level officers who served at the pleasure of the king, to patronage offices usually held at the pleasure of the patron officer, to offices that were bought and sold as unremovable freehold property (a practice known as venality). The article itself is a tour de force, presenting extensive evidence to support this office hybridity claim and responding point-by-point to existing and anticipated counterarguments by unitary executive theorists. And it is but one installment in a larger project to debunk unitary/originalist claims about the President’s removal power (which also includes The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity and an extensive Appendix to this article cataloguing Unitary Executive Theorists’ misuse of historical sources). This brief post will touch on only a sliver of Shugerman’s intricate argument and extensive evidence, which I encourage all to read for themselves. Continue reading "In Search of the Presidential Removal Power: What Venality (Offices as Property) Tells Us About the Constitutional Dogs that Did Not Bark and the Howling Hounds of Bureaucratic Accountability"

NHTSA’s Incredible Journey from Industry Regulator to Surrogate Cop

Jun 26, 2023 Wendy WagnerAdministrative Law

Wendy Wagner

The “toothpaste tube theory” in administrative law predicts that when there are too many legal constraints placed on an agency (pressure on the tube), the agency will simply find another way to accomplish the same task more expeditiously (the toothpaste bulge moves). Examples are everywhere. The National Highway Traffic Safety Administration (NHTSA) deploys automotive recalls to avoid the travails of the rule-making process. Some agencies rely on pre-NPRM communications to shore up rule proposals and avoid the logical outgrowth test. Agencies might even rely on guidance to sidestep onerous notice-and-comment requirements for rulemaking. By following the path of least resistance, agencies can accomplish their statutory assignments more swiftly and with fewer risks.

In The Invisible Driver of Policing, which is forthcoming in the Stanford Law Review, Farhang Heydari brings the toothpaste tube theory to a new level in unveiling NHTSA’s displaced efforts at enhancing the safety of vehicle transportation. In sixty riveting pages, Heydari details how NHTSA—finding itself effectively blocked from regulating the powerful auto industry—shifted significant energies towards targeting the drivers themselves. Indeed, a whopping 80% of NHTSA’s budget is apparently dedicated to traffic enforcement. (P. 54.) Heydari then links a significant component of this enforcement to encouraging the use of “high traffic stops, ostensibly as a tack both to improve traffic safety and fight crime” (P. 2), transforming the agency into the “unexpected enabler of pretextual stops.” (P. 1.) To that end, NHTSA’s sponsored research “called for a 400-500% increase in traffic enforcement.” (P. 33.) Although Heydari’s article was intended to alert his fellow criminal law scholars to the prevalence of clandestine law enforcement by nonexpert governmental agencies (Pp. 52-55), his article is perhaps even more jolting for administrative law readers. Continue reading "NHTSA’s Incredible Journey from Industry Regulator to Surrogate Cop"

Confused Merger Policy at the FTC

May 25, 2023 Richard PierceAdministrative Law

Richard Pierce

In these two articles, Professor Sokol and his co-authors analyze recent changes in the methods the Federal Trade Commission (FTC) uses to review proposed mergers. Their findings are startling. The articles are required reading for anyone who is interested in antitrust law, administrative law, government regulation, or corporate law.

In his short essay Antitrust Merger as a Regulatory Sandbox, Sokol praises the antitrust merger control system under the Hart-Scott-Rodino Act as “an early attempt at a ‘regulatory sandbox,’” and criticizes developments of the Biden administration that reduce innovation and chill mergers. In Antitrust Mergers and Uncertainty, Sokol and his co-authors asked lawyers and economists who regularly advise firms about prospective mergers a series of questions about the ways in which the process has changed in the two years in which Chair Khan has headed the FTC. Continue reading "Confused Merger Policy at the FTC"

Harm Egalitarianism

Apr 26, 2023 Michael E HerzAdministrative Law

Michael E Herz

In the last few years, law schools and law professors have given new attention to how questions of race can be interwoven into courses that are not explicitly about race. Much has been written about how to do so in both first-year and upper-level courses, and, from all reports, the law school classroom has meaningfully changed. My sense, though it is completely impressionistic and unscientific, is that the typical Administrative Law course may have changed less than many others. It seems fair to say, at least, that there has not developed a standard suite of topics that a professor wanting to integrate questions of race and racism might include. (Though for those interested, the 2020 Symposium on Racism in Administrative Law on the Notice & Comment blog is a very useful place to start.)

Daniel Farber’s Inequality and Regulation will be of enormous value to those looking for an entrée for discussing race and Administrative Law. Moreover, wholly apart from its relevance to the classroom, it is an important substantive contribution regarding the role of race, and of poverty, in regulatory policymaking. And it tackles these thorny topics in a highly readable fashion, with a minimum of jargon, obfuscation, and, relatively speaking, citations. (Were it in a student-edited Law Review, the editors would have been pretty grumpy about the above-the-line to below-the-line ratio. It may be one advantage of faculty-edited journals is a refreshing rejection of the citation addiction (or fetish).) Continue reading "Harm Egalitarianism"

Armageddon, but with OIRA Instead of Bruce Willis

Mar 23, 2023 Richard MurphyAdministrative Law

Richard Murphy

Dan [Billy Bob Thornton]: Well, our object collision budget’s a million dollars, that allows us to track about 3% of the sky, and beg’n your pardon sir, but it’s a big-*** sky. ***

President [Stanley Anderson]: What kind of damage are we…

Dan: Damage? Total, sir. It’s what we call a global killer. The end of mankind. Doesn’t matter where it hits. Nothing would survive, not even bacteria.

President: My God. What do we do?

In the 1998 disaster film, Armageddon, a Texas-sized asteroid is on track to smash into the Earth, finishing the job started by the asteroid that did in the dinosaurs. Fortunately, a NASA official, Billy Bob Thornton, finds an oil driller, Bruce Willis, who (SPOILER ALERTS!) digs a deep hole in the asteroid and blows it up, sacrificing his life but only after giving his blessing for his daughter, Liv Tyler, to marry Ben Affleck, whom Bruce Willis loves like a son.

Professor Michael Livermore’s thought-provoking essay, Catastrophic Risk Review, makes the case that there is a better way than killing Bruce Willis to avoid massive death and destruction from asteroid strikes: Put the Office of Information and Regulatory Affairs (OIRA) on the job. Continue reading "Armageddon, but with OIRA Instead of Bruce Willis"

Outsourcing Agency Rulemaking

Feb 14, 2023 Christopher WalkerAdministrative Law

Christopher Walker

When it comes to understanding the political dynamics of agency rulemaking, the place to start is Rachel Potter’s book Bending the Rules: Procedural Politicking in the Bureaucracy, about which the Yale Journal on Regulation published a blog symposium in 2019. Through a mix of qualitative and quantitative methods, Potter explores how agency officials—both career civil servants and political appointees—play a role in the rulemaking process and leverage procedural rules to help advance their preferred policy outcomes.

It turns out, however, that this depiction of agency rulemaking omits an important category of rule drafters: government contractors. Fortunately for the field of administrative law, the Administrative Conference of the United States engaged Potter and Bridget Dooling to conduct a study of the role of private contractors in federal agency rulemaking. They interviewed some forty-five agency officials, contractors, and other experts. Rulemaking by Contract, which is forthcoming in the Administrative Law Review, presents the descriptive findings of their study and is well worth a close read. Here, however, I focus on their follow-up article, Regulatory Body Shops, which explores the normative implications of their findings in creative and important ways. Continue reading "Outsourcing Agency Rulemaking"

Form And Substance In The New Major Questions Doctrine

Jan 12, 2023 Mila SohoniAdministrative Law

Mila Sohoni

Readers of Jotwell’s administrative law section need no introduction to the major questions doctrine—either in its older forms, or in its new and more muscular incarnation as a clear statement rule that requires that Congress speak in pellucid terms in order to authorize an agency to regulate a question of “major” significance. What some readers may not have noticed is that the stream of commentary on the new major questions doctrine has already burgeoned to such an extent that simply keeping up with it all is no small challenge. In his own recent contribution to this growing corpus, Professor Chris Walker recalled Justice Scalia’s Brand X dissent, which sardonically saluted the Court for creating “a wonderful new world … full of promise for administrative-law professors in need of tenure articles and, of course, for litigators.” But that list is far too short. The new major questions doctrine is also evidently “a wonderful new world” for podcasters, bloggers, essayists, and op-ed commentators—not to mention quite a few administrative law professors who already have tenure (including me).

Professors Daniel Deacon and Leah Litman, in their impressive article The New Major Questions Doctrine, presented an early assessment of the doctrine within mere weeks (!) of the Term’s end. They begin by situating the doctrine against other tools available to courts to constrain the exercise of authority by administrative agencies: statutory interpretation and nondelegation doctrine. (Pp. 8-12.) They correctly detect an “evolution” (P. 13) in the Court’s approach to the major questions doctrine beginning with the Court’s decision in the case challenging the CDC’s imposition of a nationwide eviction moratorium. In that decision, in the subsequent challenge to the OSHA vaccine mandate, and in West Virginia v. EPA, the Court gradually shifted its application of the major questions doctrine, ultimately shaping it into a rule that “frames—and alters—the entire enterprise of statutory interpretation.” (P. 23.) As the Court left matters at the close of the last Term, the new major questions doctrine requires that statutory authorization to address a major question “jump off the page.” (P. 25.) Continue reading "Form And Substance In The New Major Questions Doctrine"

Against Government’s Reification of Business Secrecy

Dec 1, 2022 Margaret KwokaAdministrative Law

Margaret Kwoka

There has long been great debate about the extent to which the public should have access to government-held information that concerns private businesses. Primarily sought through requests made under the Freedom of Information Act (FOIA), this type of information is often claimed exempt from mandatory disclosure under FOIA’s Exemption 4, which covers trade secrets and confidential commercial or financial information obtained from a third party. But the state of the law has been evolving in an unsatisfactory way. For example, Sonia Katyal and Charles Graves have a recent searing critique of the over-application of the trade secrets doctrine generally, and as I reviewed a couple of years ago, Deepa Varadarajan brilliantly takes apart the justifications for the sweeping expanse of Exemption 4 specifically. Both pieces, and others, have pointed out the expansion of commercial secrecy beyond the traditional justification to protect competitive innovations. Calls for reform, such as this recently proposed legislation, have typically centered on cabining the trade secrets protections to apply more narrowly, thus rebalancing the interests in public transparency against those of business secrecy.

This line of scholarship is rich and worthy, but Christopher Morten’s outstanding forthcoming article, Publishing Corporate Secrets, finds a fresh third angle to the problem, rejecting the idea that line drawing is even necessary and embracing as a solution a middle ground between full disclosure and guarded secret keeping. Are you intrigued by the idea that the government might be able to publish important information without first deciding whether it constitutes a trade secret? Or that there is a way to publish trade secrets for the social good without competitors profiting from it? So was I. Read on. Continue reading "Against Government’s Reification of Business Secrecy"

The Role of Departments in the Design of the Federal Government

Nov 1, 2022 Jack BeermannAdministrative Law

Jack Beermann

Adherents to the unitary executive theory, which posits that the Constitution grants the President complete and absolute control over the execution of the law, claim that their view is required by the text of the Constitution, especially Article II’s vesting clause which proclaims that the “Executive Power shall be vested in a President of the United States of America.” As Justice Scalia put it, “this does not mean some of the executive power, but all of the executive power.” In Scalia’s view, the separation of powers demands that the President must have the power even to prevent the prosecution of Executive Branch officials, including those who have engaged in serious job-related criminal misconduct that threatens to undermine the accountability of the Executive Branch. Adherents to the theory on the Supreme Court may be in the process of dismantling all checks Congress has placed on presidential control over the administration of the law, including, among others, limitations on removal of Officers of the United States, the discretion of agency experts, and the independence of independent agencies.

Even assuming that Justice Scalia’s heavily textualist form of originalism is an appropriate methodology for applying the Constitution, the unitary executive theory has never successfully accounted for what, in light of the theory, must be puzzling constitutional text. Examples include, the provision that grants the President the right to “require the Opinion, in writing, of the principal Officer in each of the executive Department,” the Constitution’s expression of the President’s role in carrying out federal law as a duty (not a power) to “take Care that the Laws be faithfully executed” and the Constitution’s assignment to Congress of the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution…all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” As one of many possible examples of how this language undercuts the absolutist claims underlying the unitary executive theory, if the Constitution already establishes that the President personally possesses all possible executive power, why would we need a clause granting the President the power to compel department heads to answer his queries? Enter Blake Emerson’s excellent article The Departmental Structure of Executive Power: Subordinate Checks from Madison to Mueller. Continue reading "The Role of Departments in the Design of the Federal Government"

Legalizing the Politics of Care: The Search for the Moral Foundations of Administrative Law

Sep 30, 2022 Jodi ShortAdministrative Law

Jodi Short

A “politics of care” has gained prominence in policy advocacy responses to the pandemic and the broad social and economic displacements and inequities it has caused and revealed. Policies such as universal preschool, funding for childcare facilities, tax credits for child and elder care, criminal justice reform, addressing systemic racism, and rebuilding of public infrastructure have been justified as ways to recognize that caregiving, which allows us all to survive, grow, and flourish, is a primary public value. Indeed, on the precipice of winning the presidency, Joe Biden embraced a vision of the President’s responsibility that includes a “duty of care for all Americans.”

In Public Care in Public Law: Structure, Procedure, and Purpose, Blake Emerson seeks to translate the growing resonance of the “politics of care” into an animating principle of public law, grounding U.S. statutory, administrative, and constitutional law in a legal principle of public care that obligates public officials to attend to the needs and values of those they govern. Emerson’s account is both descriptive and normative. He makes the case that the public care principle can be found in existing statutory, administrative, and constitutional law. And his project in this piece is to foreground that principle and claim its essential primacy. Continue reading "Legalizing the Politics of Care: The Search for the Moral Foundations of Administrative Law"