Category Archives: Administrative Law

Embracing Conflict and Instability: A New Theory for the Administrative State

Aug 17, 2022 Wendy WagnerAdministrative Law

Wendy Wagner

What are the key ingredients for a more democratically-grounded administrative state? The answers vary, but most scholars advocate for some type of agency decision-making that resolves Congress’ mandates expeditiously, while also providing “reasons” for those decisions that draw on the best scientific advice, solicit views from all affected groups, and follow accountable procedures. Whatever specific theory one adopts for the “democracy question,” (P. 5) however, most scholars seem to agree that the end goal for agencies is to resolve an issue and then move on.

Daniel Walters turns that conventional thinking on its head in his provocative piece forthcoming in the Yale Law Journal, The Administrative Agon: A Democratic Theory for a Conflictual Regulatory State. A primary goal for administrative decision-making, Walters argues, is not to reach closure on the issues agencies are asked to resolve, but rather the opposite. Agencies should strive to nurture and maintain deliberation and even disagreement, without worrying so much about whether there is a clear path out of the conflict. Continue reading "Embracing Conflict and Instability: A New Theory for the Administrative State"

The Administrative State As Seen Through a Chevron Lens

Jul 19, 2022 Richard PierceAdministrative Law

Richard Pierce

Thomas Merrill’s book, The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State, is timely in several ways. First, it arrives immediately after he was named one of the fifty most important legal scholars of all time. Second, it tells the story of the Supreme Court’s 1984 opinion in Chevron v. NRDC, the most frequently cited administrative law opinion in history, at a time when the Chevron doctrine is in severe jeopardy. Third, Merrill uses the history of the Chevron doctrine as a lens through which he explains and defends the administrative state at a time when it is under attack as illegitimate and unconstitutional.

Merrill begins by describing the Chevron opinion and its effects. The opinion was long, complicated, and nuanced, but many circuit courts ignored the rest of the opinion and applied only the famous two-part test that the Court announced:

When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Continue reading "The Administrative State As Seen Through a Chevron Lens"

Whence Ex parte Young?

Jun 16, 2022 Richard MurphyAdministrative Law

Richard Murphy

Sure, we all know about Ex parte Young, the 1908 Supreme Court precedent that stands broadly for the proposition that plaintiffs can, without any express statutory cause of action, invoke a form of “nonstatutory review” to sue government officials to enjoin unconstitutional actions. But familiarity has not brought clarity regarding this cornerstone of judicial control of official action. Questions have lingered for a century regarding Ex parte Young’s evasion of the 11^th Amendment, the source of its cause of action, its proper scope, and its jurisdictional basis. In just the last year, Ex parte Young made a surprisingly large splash in the news for a 113-year-old federal courts decision as the justices have sharply disputed its parameters in the challenge to Texas’s six-week ban on abortions that culiminated in Whole Woman’s Health v. Jackson (2021). The scope of the federal courts’ equitable power associated with Ex parte Young remains remarkably unsettled.

The Supreme Court has told us that, to determine the scope of the federal courts’ equitable powers, we should look to history—and especially to the English High Court of Chancery circa 1789. In their richly detailed and fascinating article, The Common Law Origins of Ex parte Young, Professor James Pfander and Jacob Wentzel contend that important and influential scholarship, consistent with this guidance, has deployed a narrow form of “equitable originalism” that threatens to unduly limit judicial power to issue injunctive relief to stop constitutional violations. Continue reading "Whence Ex parte Young?"

Nondelegation and Originalism

May 18, 2022 Jack BeermannAdministrative Law

Jack Beermann

Originalism certainly isn’t what it used to be. From a fringe theory with few adherents it has, in recent decades, become the dominant conservative legal weapon deployed against nearly every liberal legal development since the dawn of the twentieth century, particularly the acceptance of the administrative state and the delegation of rulemaking power to agencies. Professor Kurt Eggert’s recent article adds to the mounting evidence that originalism is not a credible legal theory especially when deployed against Congress’s choices concerning the proper structure of the regulatory state.

Eggert’s opening salvo takes aim at the claim that the Framers of the Constitution adopted a theory of government embodied in John Locke’s Second Treatise of Government of 1689, which includes what originalists characterize as a sweeping rejection of legislators’ delegating lawmaking power. This is the basis of Professor Ilan Wurman’s argument in Nondelegation at the Founding, and, as Eggert points out, Justices Gorsuch, Rehnquist and Thomas have all cited Locke as a source for their argument that the Constitution incorporates a strict nondelegation doctrine. Adding to the chorus of scholars who reject the conclusion that the Framers embodied a nondelegation principle based on Locke’s Second Treatise, Eggert demonstrates convincingly that Locke’s influence had largely disappeared before the Constitutional Convention of 1787 and that his only real influence was in favor of rebellion in the 1770s, not on the structure of the new government created in the 1780s. In fact, only Anti-Federalists opposed to the Constitution relied heavily on Locke and then only to cite his natural rights theories as a reason to reject a powerful central government. Continue reading "Nondelegation and Originalism"

Disputing Conflict Avoidance

Apr 13, 2022 Anne Joseph O'ConnellAdministrative Law

Anne Joseph O’Connell

Political appointees of all stripes can encounter opposition from the career ranks of federal agencies. Such conflict may shorten the tenures of appointees as well as of career civil servants. Public administration scholars and commentators have emphasized the need for less conflict, often cajoling the “in-and-outers” to get along better with longtime staff.

But what if agencies shouldn’t or couldn’t avoid such conflict? Brian Feinstein and Abby Wood’s new paper, Divided Agencies, suggests that we may not need to lose much sleep. They find that agencies with greater ideological conflict between political appointees and civil servants may be more careful in their rulemaking—by taking in more perspectives (by accepting comments submitted after the deadline), by finalizing their actions more slowly, and perhaps by issuing fewer rules. In their view, civil servants “serve as a bulwark against wild changes in regulatory policy.” By “pull[ing] agency policies toward the median voter,” civil servants “can serve a democratizing function in divided agencies”—a marked contrast to the increasingly mainstream worries about “employment-protected civil servants” operating as a “counter-majoritarian force in policymaking.” Continue reading "Disputing Conflict Avoidance"

Uncovering the Hidden World of Administrative Guidance

Mar 4, 2022 Edward RubinAdministrative Law

Edward Rubin

Guidance is a large, amorphous group of communications, often fluid and informal, by which administrative agencies instruct regulated parties about the way to comply with statutes, legislative rules and legal precedents. In-depth interviewing, as opposed to statistically analyzed surveys, is a fluid, relatively informal method of collecting empirical data. In Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries, Nicholas Parrillo uses in-depth interviewing to understand the way in which guidance operates in the federal system. One reason I like it lots is that it is represents an effective combination of subject matter and methodology.

Professor Parrillo conducted 135 in-depth interviews with people in government, industry, unions and NGOs who had personal experience with the way federal agencies use guidance. Through this method, he was able to garner a great deal of information about a wide variety of guidance techniques, the effectiveness or ineffectiveness of these techniques, the subtleties of agency practice and regulated party response, the subjective reactions of the participants, and the sources of conflict and concern. Much of this would have been difficult or impossible to capture with a survey instrument, and some of the issues might not even have occurred to the researcher until highlighted by the interviewees. Of course, this method does not permit quantitative statements about the frequency of particular practices or beliefs, but when several people with decades of experience assert that a practice or attitude is widespread, that seems like convincing evidence. Continue reading "Uncovering the Hidden World of Administrative Guidance"

A Timely, Thorough, and Provocative Evaluation of the Presumption of Regularity

Feb 2, 2022 Richard PierceAdministrative Law

Richard Pierce

The Supreme Court has often invoked the presumption of regularity and its first cousin, the presumption of good faith. Taken together the two presumptions instruct courts to assume that the government has used the proper procedures to take an action that is properly motivated. Neither the Court nor scholars have engaged in any systematic effort to define the two presumptions, justify their existence, describe their scope and uses, or describe the evidence that is required to rebut the presumptions. Aram Gavoor and Steven Platt’s new article In Search of the Presumption of Regularity undertakes that task at a time when it is particularly important to understand the presumptions.

The Supreme Court often says that a court should apply the presumption of regularity and the presumption of good faith “except in the rare case” in which there is powerful extrinsic evidence of wrongdoing by the government. It is fair to question the Court’s characterization of the circumstances in which there is reason to doubt the applicability of the presumptions as “rare” today. Over the last few years, both the public and the courts have had many occasions to doubt the rarity of government actions that were taken without using proper procedures and for undisclosed inappropriate reasons. As I have detailed elsewhere, the Supreme Court has responded to this troubling trend by increasing the scope and intensity of the duty to engage in reasoned decision making, but it has not engaged in any systematic attempt to describe the presumptions, their justifications, their scope, or their effects. Continue reading "A Timely, Thorough, and Provocative Evaluation of the Presumption of Regularity"

Elevating Marginalized Voices in Agency Decisionmaking

Jan 5, 2022 Margaret KwokaAdministrative Law

Margaret Kwoka

Literature exploring mechanisms for democratic accountability of the administrative state is so rich that it sometimes feels like there is no novel take left. But Professor Brian Feinstein, in his forthcoming article Identity-Conscious Administrative Law, shines a spotlight on an unexamined angle: how and when agency procedures use identity requirements to ensure otherwise-marginalized perspectives are heard.

The sets of administrative structures Professor Feinstein considers may seem specific and narrow, but as he compellingly demonstrates, the possible implications of expanding these approaches are vast and important. Indeed, what makes this article so convincing is its identification of extant and accepted tools to address deep and structural problems of inequality and injustice in administrative decisionmaking. If taken to a larger scale, these tools could be a central part of reclaiming democratic accountability over the administrative state. Continue reading "Elevating Marginalized Voices in Agency Decisionmaking"

Immigration Law’s “Shadow Dockets”

Nov 29, 2021 Mila SohoniAdministrative Law

Mila Sohoni

The “law in books” is often not the same thing as the “law in action.” And in administrative law, the reason for that disjoint is often because some agency has decided to interpret, apply, or enforce the written law in a way that changes its on-the-ground meaning. In immigration law, the “law in books”—the Immigration and Nationality Act—takes a hard line on violators: it “specifies deportation as the sanction for nearly all transgressions of immigration law, no matter how minor, and regardless of the personal circumstances of the immigrant” (P. 3.) But when we look at how that law is applied, a different picture comes into view—“a system of shadow sanctions” (P. 4) that takes the place of deportation for vast numbers of noncitizens.

Shalini Bhargava Ray maps and critiques this “shadow”¹ world of immigration law in an absorbing recent article, Immigration Law’s Arbitrariness Problem. In the article, Professor Ray sets out how the immigration bureaucracy stops, or indefinitely postpones, the issuance and execution of huge numbers of removal orders through the use of various administrative devices, including deferred action, administrative closure, and orders of supervision (P. 4.) She then explains the problematic feature of these discretionary tools as a rule-of-law matter: though these shadow sanctions mitigate the harshness of deportation, they are still doled out in an entirely opaque and often arbitrary way. Continue reading "Immigration Law’s “Shadow Dockets”"

Chevron Flip-Flops of a Different Sort — Understanding the Shifting Politics of Deference

Oct 29, 2021 Michael E HerzAdministrative Law

Michael E Herz

Like vaccinations, voter fraud, guns, taking a knee, and, well, everything, views on Chevron deference have become not just ideologically tinged but ideologically determined. Progressives are Chevron enthusiasts; conservatives are Chevron skeptics. Chevron is under siege, and the battle lines are familiar. Yet, on its face, Chevron is politically neutral. It increases agency power at the expense of judicial power; whether that is politically helpful depends on whether your team controls the White House or if it controls the courts. Furthermore, the current ideological array has not always been the case. When Chevron was decided, the enthusiasts were on the right and the skeptics on the left. So what is going on?

In The Politics of Deference, Gregory Elinson and Jonathan Gould explain. They provide a richly documented descriptive account of the shifting politics of deference dating back to the 1970s. The shifts are what you would expect; the team that controls the White House likes deference, the team that controls the courts does not. Except . . . the pendulum did not swing when Donald Trump became president. Elinson and Gould describe why in fact deference does have a political valence and it makes sense that conservatives are skeptical and liberals supportive, regardless of who is in the White House. Continue reading "Chevron Flip-Flops of a Different Sort — Understanding the Shifting Politics of Deference"