Category Archives: Administrative Law
Sep 30, 2021 Eli NachmanyAdministrative Law
This summer, Dædalus, the Journal of the American Academy of the Arts and Sciences, turned its focus to public administration and the regulatory state. Mark Tushnet served as the Summer 2021 Dædalus Issue’s Guest Editor, compiling essays from leading lights of administrative law like Cass Sunstein, Aaron Nielson, and Judge Neomi Rao. Professor Nielson’s piece, Deconstruction (Not Destruction), is the latest work in a line of scholarly literature that acknowledges the growing libertarian discomfort with perceived excesses of administrative governance (perhaps best embodied in the scholarship of Professor Philip Hamburger and the jurisprudence of Justice Neil Gorsuch) and proposes an alternative path forward for regulatory state skeptics. Some other such works include Professor Jeff Pojanowski’s 2020 Harvard Law Review article Neoclassical Administrative Law and Professors Sunstein and Adrian Vermeule’s new book Law and Leviathan.
Conceding at the beginning of the essay that “[t]he Supreme Court is not about to declare most of the federal government unconstitutional,” Professor Nielson is nevertheless sympathetic to the idea that today’s administrative-centric federal model presents serious issues. Professor Nielson’s thesis proceeds from the premise that, in the context of administrative law, commentators typically associate the word “deconstruction” with former White House Chief Strategist Stephen Bannon’s assertion that the Trump Administration sought to “deconstruct”—read: destroy—the administrative state. Professor Nielson takes a step back and reinterprets deconstruction in the “more technical sense of examining the administrative state to identify where theory and reality diverge and what can be done to fix it.” This reconsideration, Professor Nielson argues, is long overdue; to the extent that the federal government has constructed the administrative state over the last century or so, Professor Nielson proposes deconstruction as a way of rigorously interrogating the theories and assumptions underlying said efforts. Continue reading "A Second Look at the Administrative State: Deconstruction as Reassessment"
Aug 30, 2021 Christopher WalkerAdministrative Law
Emily S. Bremer,
The Rediscovered Stages of Agency Adjudication, 99
Wash. U. L. Rev. __ (forthcoming), available at
SSRN.
A couple years ago, Melissa Wasserman and I charted the new and old worlds of formal agency adjudication. The old world, we explained, consisted of the traditional formal adjudication framework under the Administrative Procedure Act (APA), with a trial-like hearing before an administrative law judge (ALJ). Drawing on the work of Michael Asimow, Kent Barnett, and others, we explained that the new world is more diverse and varied. Hearings do not take place just before the nearly 2,000 ALJs in the federal system, but also before more than 10,000 administrative judges, hearing officers, and examiners who are not governed by the APA’s formal provisions. We argued that, in both the old and new world, agency head final-decisionmaking authority remains the standard (and preferred) model—something the Supreme Court in United States v. Arthrex seemed to suggest may be constitutionally required earlier this year.
Another way to conceptualize the old and new worlds is that there is a type—or mode—of agency adjudication (Type B) between the APA’s “formal” (Type A) and “informal” (Type C) modes. In recent years, much scholarly inquiry has focused on the distinctions between Type A and Type B, including an entire issue of the Duke Law Journal. Despite this sustained attention, it turns out that our understanding of adjudication under the APA may be based on a historical misunderstanding. In The Rediscovered Stages of Agency Adjudication, Emily Bremer examines the historical record and concludes that, at the APA’s founding, “informal and formal adjudication were not viewed as alternative modes, but rather as consecutive stages.” It is not often that an article requires a field to fundamentally reconsider its foundations. Yet, Bremer’s Rediscovered Stages is such an article for administrative law (and agency adjudication in particular). Continue reading "Unearthing the Lost World of APA Adjudication"
Jul 16, 2021 Bijal ShahAdministrative Law
Anne Joseph O’Connell,
Actings, 120
Colum. L. Rev. 613 (2020).
President Trump relied heavily on temporary leadership to run his branch. According to critics, the tenuousness of Trump’s cabinet positions—and their high turnover rate—was both a cause and reflection of an amateur and unreliable presidency. And yet, while the extent to which Trump depended on acting officials was anomalous, he was not the only president to do so; indeed, presidents have utilized temporary officials for quite some time. In addition to demonstrating that temporary officials have been fairly common across both Republican and Democratic administrations since the turn of the century, Anne Joseph O’Connell argues in Actings that these officials stabilize the government in times of crisis and transition.
Professor O’Connell, along with Nina Mendelson, is one of today’s preeminent legal experts on the Federal Vacancies Reform Act (Vacancies Act). Professor O’Connell’s prior scholarship and testimony on this topic is both detailed and accessible, and makes clear the stakes of the relevant debates. Actings, published recently in the Columbia Law Review, is no exception. This comprehensive work offers a nuanced and evocative account of the history, constitutional and legal frameworks, and problems that attach to temporary leadership in the top positions of the executive branch. It also marks a departure from Professor O’Connell’s previous writing, in that it is relatively accepting of temporary political appointees. Continue reading "A Definitive Work on Temporary Political Leadership"
Jun 14, 2021 Jodi ShortAdministrative Law
Any law review article that name-checks the Doritos Locos Taco warrants a read. But National Parks, Incorporated, by Sarah Light, does much more. The article presents a grounded inquiry into the nature of publicness that is fascinating in its own right and that tackles timely questions about the boundaries of the state at a time when they are being vigorously contested. Specifically, this article: presents a history of private enterprise on public lands to illustrate the tension between public interests and commercial interests that has been present since the inception of the national park system; describes how this tension has evolved and expanded in the modern political and economic context; and presents a framework for thinking about the value of publicness and where boundaries around private enterprise should be drawn to preserve it.
Light begins with an account of the political and legal history of the national parks, which was a pure delight for someone whose pandemic travel has consisted entirely of road trips to parks across the Western United States. More importantly, this part of the article reveals how the legislators, administrators, and activists instrumental in founding these institutions thought about the value of publicness in the parks and the threat posed to it by private, commercial interests. For them, in a nutshell, publicness was necessary to guard against two key harms associated with private property: exclusion and destruction. Publicness meant that any individual, of any means, could enjoy the natural splendor of the parks. And it meant that this natural beauty could not be consumed or defaced by profit-making enterprise. On top of these benefits to individuals, publicness also provided collective benefits. Committing public resources to park lands expressed the nation’s shared commitment to the values of preservation, equal access, and democracy through civic interaction among Americans from all different walks of life. Continue reading "National Parks, Inc."
May 18, 2021 Richard PierceAdministrative Law
Curtis Bradley & Ernest Young,
Unpacking Third Party Standing, __
Yale L. J. __ (forthcoming), available at
SSRN.
Justice Scalia once famously said: “Administrative Law is not for sissies.” His colorful rhetoric undoubtedly was based on the combination of opacity, complexity, ambiguity, and internal inconsistency that characterizes the field of administrative law. The law governing third party standing has similar characteristics. Curtis Bradley and Ernest Young do an excellent job of “unpacking” third party standing in Unpacking Third Party Standing, but it too would not be a good candidate for casual reading by “sissies.” I have read it twice now, and I am far short of having a complete understanding of the intricate analysis in the article. The quality of the analysis is so good, however, that I plan to read it several more times.
The article is extremely ambitious. It is an attempt to “unpack” and explain a doctrine that many fine scholars have been unable to explain in a coherent manner. The reasoning the Supreme Court has used when it has addressed the doctrine is often inconsistent, unhelpful, and incomplete. The authors attribute the failure of the Court and scholars to describe and explain the doctrine in a coherent manner to their attempt to describe it as a single doctrine. Continue reading "Third Party Standing Is Not for Sissies"
Apr 20, 2021 Kristin HickmanAdministrative Law
Agency reliance on subregulatory guidance to advise the public is a perennial topic of discussion among regulatory practitioners and administrative law scholars. We want agencies to be forthcoming in sharing their thoughts regarding the laws that they administer, yet we fret that they rely inappropriately on subregulatory guidance to avoid their procedural responsibilities, and we struggle to balance the two.
The use of artificial intelligence in the administration of government statutes and programs is another hot topic these days, and rightly so. Optimism abounds that agencies will be able to harness the machines to make administration fairer and more efficient, yet of course we should think critically as well about the problems that relying on computer algorithms to achieve administrative ends may raise. In Automated Legal Guidance, Joshua Blank and Leigh Osofsky extend their wonderful work on “simplexity” in tax administration to put these concepts together and offer a critique of government reliance on artificial intelligence to provide guidance to the public. Continue reading "Artificial Intelligence Meets Simplexity"
Mar 30, 2021 Miriam SeifterAdministrative Law
Shelley Welton,
Rethinking Grid Governance for the Climate Change Era,
Calif. L. Rev. (forthcoming 2021),
available at SSRN.
Energy law today should be everyone’s concern, and especially the concern of administrative law scholars. Scientists report that we are in a climate emergency. Policymakers agree that the electricity sector will be vital to the clean energy transition. A functional electric grid is also a public good that cannot be taken for granted, as the recent disaster in Texas underscores. State and federal agencies, in partnership with their sibling branches, will play a pivotal role in administering the energy solutions the nation adopts. It is an administrative law problem for the ages.
Yet the field of energy law can be an impenetrable slog (I say this as a once and future teacher of the class). Really grappling with energy administration requires excavating dense layers of complex science and technology, unusual regulatory structures, and endless insiders’ terminology to reveal the important problems that lie beneath. Professor Shelley Welton is here to help. In a series of articles, she has elegantly translated the core dilemmas of the clean energy transition. Problems that seemed hyper-technical emerge as familiar administrative law issues of accountability, institutional design, and allocations of power among public and private entities. I’ll focus on one article, Rethinking Grid Governance for the Climate Change Era, but I recommend the entire series, available on SSRN. Continue reading "Illuminating The Problems of Electricity Regulation"
Feb 22, 2021 Jack BeermannAdministrative Law
Janet Freilich,
Ignoring Information Quality, __
Fordham L.R. __ (forthcoming 2021),
available at SSRN.
Complaints about the patent system are legion. Critics complain that it is too easy to get a patent, that it is too easy to challenge an existing patent, that many patent denials are rationally inexplicable, that aggressive enforcement of patents stifles innovation, that patent trolls abuse the system to extort money from innocent users of widespread technology, and that inventors leverage modest modifications of existing patents to extend the patent period beyond intended legislative limits. While Janet Freilich’s forthcoming article, Ignoring Information Quality, may not reveal the root of all patent evil, it illuminates an important problem in the U.S. patent system, namely that patent examiners rely on low quality information to make their ever-important decisions on patentability. This, according to Professor Freilich, leads examiners to grant patents based on dubious claims that undercut, rather than further, patent law’s purpose of encouraging useful innovation and to reject deserving patents based on an incorrect understanding of background information.
The attentive reader may wonder why this is an administrative law jot rather than an intellectual property one. The answer is simple—the Patent and Trademark Office (PTO), the agency that grants patents, is an administrative agency, and thus Professor Freilich’s article is a case study in the importance of high quality information across the spectrum of administrative law. Information quality problems like those that plague the patent system exist in many corners of administrative law where sensible policy decisions and predictions are possible only in light of high quality information. Professor Freilich’s paper shines a light on a problem in the patent system that is similar to problems that have been noticed in administrative rulemaking, where mountains of comments may overwhelm the capacity of agencies to separate the wheat from the chaff and in adjudications where subjects of administrative action in areas such as immigration enforcement may lack the capacity or knowledge to gather and present the facts relevant to their cases. Continue reading "Patent Fake News"
Jan 19, 2021 Michael E HerzAdministrative Law
The nationwide injunction has seized the imagination of courts and law professors in recent years. Not surprisingly, JOTWELL’s pages screens have given it extensive attention. Recent jots have described important work by Samuel Bray (twice), Amanda Frost (also twice), Russell Weaver, and Alan Trammell that attacks, defends, or theorizes nationwide (or “universal”) injunctions. Jack Beermann, in praising Bray and Frost, did have one complaint: “As an administrative law nut, I wish they both grappled more with the meaning of the APA’s instruction that reviewing courts should ‘hold unlawful and set aside’ unlawful agency action.” Mila Sohoni has now filled that void. Sohoni convincingly shows that there just can be no question that in the Administrative Procedure Act Congress authorized—indeed, indicated a preference for and established a presumption in favor of—nationwide relief when a court finds a regulation defective. When APA § 706(2) authorizes a reviewing court to “set aside” an agency rule, it means exactly that.
In 2018, Attorney General Jeff Sessions distributed Litigation Guidelines instructing civil litigators in the Department of Justice (DOJ) to oppose universal injunctions always and everywhere. The memo’s seven sections gave seven reasons why such relief was beyond the pale, including the assertion that it was unconstitutional. Section VII was headed: “In APA Cases: Universal Vacatur is not Contemplated by the APA.” Sohoni’s article resoundingly contradicts this assertion. Continue reading "Defending “Universal Vacatur” — Nationwide Injunctions for Administrative Law Nuts"
Dec 15, 2020 Richard MurphyAdministrative Law
Nicholas R. Parrillo,
A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, 131
Yale L.J. (forthcoming 2021),
available at SSRN.
Not so long ago, teaching the nondelegation doctrine in Administrative Law class was straightforward. Assign students an excerpt from Whitman v. American Trucking Association. Maybe add a bit of Justice Scalia’s dissent in Mistretta. Discuss the emptiness of the intelligible-principle principle. Everyone in class agrees that, whether you like it or not, a nondelegation doctrine that can accommodate delegations to act in the “public interest” or set “fair and equitable” prices does not do very much to limit the scope of the modern regulatory state.
But change has been in the air for several years—as most clearly demonstrated by Gundy v. United States (2019). As readers of this website will likely recall, the Court in Gundy addressed a nondelegation challenge to the Sex Offender Registration and Notification Act (SORNA), which requires sex offenders to register before completing their sentences of imprisonment. Barring time travel, this requirement would have been hard to apply to persons who had completed their sentences before SORNA’s enactment. To deal with them, SORNA delegated to the Attorney General the authority to “specify the applicability” of registration requirements and to “prescribe rules for registration.” Justice Kagan, writing for a controlling plurality, found sufficient constraints in SORNA’s text, purpose, and history to reject the nondelegation challenge. Just as about a century’s worth of the Court’s precedents might lead one to expect. Continue reading "The Nondelegation Doctrine and a Deep Dive Into Federal Taxation of Real Estate in 1798 That You Didn’t Even Know You Needed"
