Category Archives: Administrative Law
Nov 6, 2020 Mila SohoniAdministrative Law
Kathryn E. Kovacs,
Constraining the Statutory President, __
Wash. U. L. Rev. __ (forthcoming), available at
SSRN.
There’s a legal black hole at 1600 Pennsylvania Avenue where there shouldn’t be—or so argues Professor Kathryn Kovacs in a spirited new article, Constraining the Statutory President. A “legal black hole,” as Adrian Vermeule defined it, exists when statutes or legal rules create a zone in which the rule of law, including the constraints of administrative procedure and the checks of judicial review, cannot penetrate. And, as Vermeule pointed out, the Court created just such a black hole in Franklin v. Massachusetts by flatly excluding the President from the ambit of the Administrative Procedure Act: “the President is not an agency within the meaning of the APA.” Franklin is probably not what most people would call a “fixed star in our constitutional constellation.” But it is now a fixed “black hole” in the (administrative) constitution—a holding subsequently reaffirmed by the Court, abided by lower courts, left undisturbed by Congress, and treated as a given by many scholars.
Kovacs dissents from this acceptance of Franklin. Her article is one of a noteworthy set of recent articles that have examined presidential power and the constraints that should be imposed upon it. This boomlet of scholarship has addressed, among other topics, frameworks for judicial review of presidential orders, the importance of presidential fact finding, and the internal White House process of crafting presidential proclamations, directives, and orders. Speaking on a more conceptual plane, one new article offers a comprehensive defense of the thesis that the “duality” of the Presidency—i.e., that the President is both a mortal man and a public office—is a “defining ambiguity” of public law. Continue reading "Administrative Law All the Way Up"
Oct 6, 2020 Margaret KwokaAdministrative Law
Deepa Varadarajan,
Business Secrecy Expansion and FOIA, 68
UCLA Law Review __ (forthcoming, 2021), available at
SSRN.
The breadth of exemptions to mandatory disclosure of government records under the Freedom of Information Act (FOIA) has long been criticized. The exemptions for national security, the agency privileges, and privacy are among those that have rightly come under fire. Even Congress has tried to rein in some of the most sweeping of these exemptions with recent amendments to the statute itself, capping the applicability of one exemption, the deliberative process privilege, to records less than twenty-five years old. But FOIA usually stands alone. Rarely is there an analogous body of law to learn from or to which it compares.
Deepa Varadarajan’s terrific forthcoming article, Business Secrecy Expansion and FOIA, demonstrates that FOIA’s trade secrets exemption is an exception. Varadarajan traces the history of trade secrets litigation back to its common law origins, documenting its steadfast march toward an ever-broader understanding of what constitutes a trade secret. Now, she explains, trade secrecy law protects any information of commercial value not generally known in the industry and which the owner has taken measures to protect. Continue reading "How Commercial Secrets Become Government Secrets"
Sep 4, 2020 Christopher WalkerAdministrative Law
David Freeman Engstrom, Daniel E. Ho, Catherine M. Sharkey & Mariano-Florentino Cuéllar,
Government by Algorithm: Artificial Intelligence in Federal Administrative Agencies,
Report for the Administrative Conference of the United States (2020), available at
SSRN.
The use of artificial intelligence is on the rise at federal agencies, and administrative law scholars aren’t paying enough attention. In a forthcoming article, Ryan Calo and Danielle Citron question whether this increasingly “automated administrative state” presents a legitimacy crisis. After all, legislatures delegate broad law-implementation authority to administrative agencies because of regulators’ “ability to accrue expertise and the prospect of flexible and nimble responses to complex problems.” Yet these agencies are increasingly subdelegating such implementation authority to “systems in which they hold no expertise, and which foreclose discretion, individuation, and reason-giving almost entirely.” Despite these concerns, Calo and Citron ultimately do not demand a deconstruction of the automated administrative state. Instead, they argue that “agencies should consciously select technology to the extent its new affordances enhance, rather than undermine, the [expertise] rationale that underpins the administrative state.”
The Calo-Citron article deserves its own Jot. But it also raises a more fundamental question: How automated is the federal administrative state today? Although some work has documented the use of artificial intelligence and machine learning (AI/ML) at a handful of federal agencies, we had lacked a system-wide study. Recognizing this deficiency, the Administrative Conference of the United States commissioned an all-star group of scholars to comprehensively examine this regulatory landscape. In February, those scholars—David Freeman Engstrom, Daniel E. Ho, Catherine M. Sharkey, and Mariano-Florentino Cuéllar—issued their 122-page report, entitled Government by Algorithm: Artificial Intelligence in Federal Administrative Agencies.
There is so much to like *lots* in this report—too much to cover in this short Jot. But I’ll flag a few highlights. Continue reading "AI Agents in Federal Agencies"
Jul 20, 2020 Eloise PasachoffAdministrative Law
What happens when Congress enacts a permanent commitment to pay for some ongoing activity, but then fails to appropriate the funds necessary to do so? Until recently, this phenomenon was almost unheard of. But contemporary examples abound. For example, Congress failed to fund different two different provisions of the Affordable Care Act that had committed the federal government to pay insurers through the “risk corridors” program and through “cost-sharing reductions”; failed to fund tribes who had elected under the Indian Self-Determination and Education Act to provide services that had previously been provided by the federal government; and failed to fund the Children’s Health Insurance Program, a complex cooperative federalism program that is deeply entrenched, albeit in different ways, in states’ health care coverage for children. These examples either reflect or generate inter-branch conflict, implicating the executive branch, and often courts, in what may at first glance seem to be simply an intra-legislative breakdown.
We need a vocabulary to identify and describe this phenomenon and a framework through which to understand and assess it. Matthew Lawrence’s new article Disappropriation does just that. Continue reading "When the Government Breaks Its Financial Promises"
Jun 24, 2020 Jodi ShortAdministrative Law
In Dimensions of Delegation, Cary Coglianese provides a principled account of the U.S. Supreme Court’s nondelegation jurisprudence. Specifically, he reconciles the seemingly idiosyncratic Schechter Poultry case with subsequent applications of the nondelegation doctrine by theorizing a multi-dimensional model of delegated power. In so doing, he provides a template for rethinking nondelegation as a matter of doctrine, rather than as a matter of political theory or political economy, as it is so often treated by partisans on both sides.
I long have puzzled over the jurisprudential treatment of Schechter Poultry. The Supreme Court has refused to overrule the case but yet has declined to follow it. More cryptically, even detailed discussions of nondelegation precedent, such as Justice Gorsuch’s recent romp in Gundy v. United States, fail to discuss important nuances of the case—including the fact that the National Industrial Recovery Act of 1933 (NIRA) contained explicit criteria for when the President could approve a code of fair conduct that would easily pass the modern “intelligible principle” test. The NIRA required that three criteria be met before the President could endorse a code of fair competition: (1) the trade association that proposed the code was “truly representative” of the regulated industry; (2) the code was not “designed to promote monopolies or to eliminate or oppress small enterprises and will not operate to discriminate against them”; and (3) the code would “tend to effectuate the policy of this title.” While this standard leaves the president with broad discretion to choose which codes to approve, it can hardly be suggested that it constrains executive discretion less than delegations subsequently endorsed by the Court without a nod to Schechter Poultry—up to and including the statutory charge to many agencies to discharge their delegated authority in the “public interest.” Continue reading "6 Degrees of Delegation"
Jun 24, 2020 Richard PierceAdministrative Law
Cary Coglianese’s article, Dimensions of Delegation, is timely. The Court has invoked the non-delegation doctrine as the basis to invalidate a statute only once 85 years ago. The only statute that the Court has ever invalidated based on application of the non-delegation doctrine actually delegated extraordinarily broad power to private participants in markets rather than to an agency. During the past year, however, five Supreme Court Justices have made it clear that they are open to the possibility of relying on the non-delegation doctrine as the basis to hold statutes unconstitutional. Even many scholars who have long opposed attempts to reinvigorate the non-delegation doctrine have become more receptive to that possibility in today’s conditions.
A recent online symposium published by The Regulatory Review illustrates the state of the debate. Jonathan Adler and Chris Walker introduced the symposium with their excellent essay: “Delegation and Time.” They made the point that the increasing inability or unwillingness of Congress to amend broadly worded statutes that confer regulatory power on agencies has created a situation in which agencies are forced to apply statutes that are so old that they were drafted when no one could have anticipated the uses to which they are now being put. Thus, for instance, the FCC is using the Communications Act of 1934 as the basis to regulate the internet and the EPA is using the Clean Air Act of 1970 as the basis to take the actions required to mitigate climate change. The result increasingly is a series of agency actions that Congress never contemplated and that might not be consistent with the values of the Congress that enacted the old statute, the present Congress, or the people. Continue reading "Reinvigorating the Non-Delegation Doctrine"
May 28, 2020 Kristin HickmanAdministrative Law
The cooperation of public and private actors to achieve public goals is not new. More than 80 years ago, Louis Jaffe lauded the longstanding and substantial involvement of private groups in the regulatory sphere. The scope, range, and legal significance of coordination between the public and private spheres have expanded since then. Modern governance is a complicated web of relationships between public and private actors, command and cooperative structures, and hard law versus soft guidance. A robust academic literature assigns different labels to this phenomenon: privatization, public/private partnerships, and new governance, to name just a few.
By necessity, these arrangements entail the exercise of policymaking discretion by private actors, to varying degrees depending upon the scenario. The result is a diffusion of governmental power that neither Congress nor the courts are likely to roll back substantially. With The New Gatekeepers: Private Firms As Public Enforcers, Rory Van Loo identifies and explores yet another way in which government relies on private actors—by looking to large corporations to serve as “enforcer firms” or “gatekeepers” ensuring compliance with federal law. Continue reading "A New Kind of Public/Private Partnership"
Apr 30, 2020 Jack BeermannAdministrative Law
When a President who campaigned on a deregulatory platform assumes office, the question immediately arises whether, in light of the unlikelihood of significant statutory assistance by Congress, the new administration will be able to achieve substantial deregulation on its own. In most contexts, agencies looking to ease regulatory burdens have essentially two options: they can engage in a reappraisal of the regulatory record (like the Reagan administration’s failed attempt to rescind the passive restraint requirement for new automobiles), or they can reinterpret the statute or statutes underlying a regulatory program (such as the same administration’s successful reform of the regulation of “stationary sources” of air pollutants), or both.
In the most exotic permutation of the latter method, employed more by the Trump administration than any previous administration, agencies have occasionally argued that their predecessors lacked statutory power to regulate as they did, leaving them no legal choice but to abandon a prior administration’s regulatory program. In Agency Statutory Abnegation in the Deregulatory Playbook, William Buzbee describes, analyzes, and dissects this “statutory abnegation” strategy, and persuasively illustrates that it has been and is likely to remain unsuccessful without major changes to basic principles of administrative law. Continue reading "When Agencies Do Not Not Have Statutory Power to Regulate"
Apr 2, 2020 Miriam SeifterAdministrative Law
The field of Administrative Law typically focuses on federal agencies, but there are tens of thousands of state and local agencies that administer the law on matters of tremendous consequence. As Nestor Davidson recently put it, the field’s “myopic federal focus obscures a massive, submerged, and surprisingly vibrant domain of administration that exists at the local-government level.” Thinking about these other levels of administration can both illuminate the actual workings of important policy areas and prompt fruitful reflection on recurring administrative-law questions.
Maria Ponomarenko’s thought-provoking new article, Rethinking Police Rulemaking, accomplishes both of these worthy goals. One significant species of local administration, she reminds us, is policing. There are close to 18,000 law enforcement agencies across the country, and they make a range of policy choices of great consequence, including regarding the use of force, stop and frisk, enforcement priorities, and “the persistent creep of the surveillance state.” In Rethinking, Ponomarenko brings fresh perspective to debates over how to oversee police agencies. In particular, she challenges a longstanding idea that an administrative-law mainstay, notice-and-comment rulemaking, is the most promising solution for holding police more accountable. Continue reading "Refining Administrative Law’s Lessons for Police"
Mar 10, 2020 Anne Joseph O'ConnellAdministrative Law
Administrative law commentary often fixates on the White House—specifically, on presidential directives to agencies. Presidents, however, often wield more control by picking agency leaders, as David Barron smartly pointed out over a decade ago. In the years since, while legal scholars have paid considerable attention to judicial picks, they have largely neglected agency appointees. Ryan Scoville’s Unqualified Ambassadors provides a deeply needed look at the people selected to lead our embassies abroad. Recently, we have seen how confirmed ambassadors can take on critical roles beyond their embassies: President Trump named the confirmed ambassador to Germany, Richard Grenell, acting Director of National Intelligence last month.
Scoville compiled (and has made freely available online) an astounding amount of information on close to 2000 ambassadorial nominees to sovereign countries from 1980 to 2018. These ambassadors serve both as diplomats and as CEOs of U.S. efforts in a particular country. Despite considerable presidential control in this area, Scoville argues that these leaders “remain as vital contributors to a successful foreign policy.” He obtained some information from the Obama Administration, which, starting in 2014, publicly provided “certificates of demonstrated competency” for each ambassadorial nominee. (Congress then codified the practice.) For the remaining 34 years of data, Scoville turned to FOIA requests. He is the rare scholar who has sued to get needed information for his article. Continue reading "The Surface State"
