Category Archives: Administrative Law

It’s “Executive Power,” Not “Executivish Power”

Feb 25, 2020 Richard MurphyAdministrative Law

Richard Murphy

Maybe you have been wondering, for one reason or another, just what the “executive power” entails. If so, you are in luck, for Professor Julian Davis Mortenson has an answer for you in two magisterial, deeply researched articles that also happen to be compelling reads: Article II Vests Executive Power, Not the Royal Prerogative, and its sequel, The Executive Power Clause. It turns out that “The executive power meant the power to execute. Period.” (Executive Power, P. 5.)

It will come as no news to readers of this website that, about a quarter of a millennium ago, Article II of the Constitution vested the “executive power” of the United States in the president. And ever since that time, Americans have been arguing about just what this “executive power” entails. In truth, it seems this debate is likely to last as long as the Republic does—which suggests that the debate sometimes says as much about the debaters as their subject. Continue reading "It’s “Executive Power,” Not “Executivish Power”"

Don’t Forget the States

Feb 5, 2020 Kathryn WattsAdministrative Law

Kathryn Watts

In 2001, Elena Kagan published Presidential Administration—her now well-known account of presidents’ increasingly aggressive efforts to control agencies’ regulatory decisions. In the nearly two decades since her article appeared in the pages of the Harvard Law Review, presidents have exerted more and more control over agencies. Indeed, in recent years, the entrenchment of presidential administration has been evident simply by reading the nation’s news headlines. In 2015, for example, the New York Times trumpeted that “Obama Announces New Rule Limiting Water Pollution,” and then in 2019, the same paper announced: “Trump Administration Rolls Back Clean Water Protections.” Similar headlines about other presidentially influenced regulatory reversals abound.

In response to the entrenchment of presidential administration, many scholars have written about potential counterweights that might come from various federal actors, such as the federal courts, Congress, or the executive-branch bureaucracy. Largely missing from this scholarly discourse, however, has been a focus on the important role that the states can and have played in both furthering—and counteracting—presidential administration. In her forthcoming article titled Administrative States: Beyond Presidential Administration, Professor Jessica Bulman-Pozen seeks to remedy this scholarly void. Specifically, Professor Bulman-Pozen seeks to bring the states into the modern day account of presidential administration. Continue reading "Don’t Forget the States"

When Agencies Sue Each Other

Jan 6, 2020 Margaret KwokaAdministrative Law

Margaret Kwoka

Independent agencies are subject to a host of interesting academic debates, including debates that go to the heart of what makes an agency independent and which agencies qualify. Most of those debates focus, however, on the relationship between independent agencies and the President. Some of them explore the relationship between independent agencies and the public, the courts, or Congress. But the horizontal examination of the relationship between independent agencies and executive agencies has gone under-examined.

In a meticulous accounting, Professor Bijal Shah documents one fascinating aspect of that relationship in her forthcoming article, Executive (Agency) Administration. There, she focuses on litigation brought by the Justice Department (DOJ) on behalf of executive agencies against independent agencies. This litigation dynamic is unusual, but as she shows, not unheard of; her painstaking gathering of all such cases since 1900 yielded about 175 cases. What is more, these cases are incredibly illuminating. The vast majority fall into one of three categories. First, when an independent agency adjudicates a matter against an executing agency as a party—typically labor-related—these cases serve as the means for judicial review. Second, when independent agencies assert power that interferes with executive agencies’ own authority, lawsuits serve to protect executive agencies’ purview. And third, there is a smaller category of cases where DOJ has challenged independent agency decisions to approve certain antitrust matters. Continue reading "When Agencies Sue Each Other"

Standing In Front of the Refrigerator

Nov 26, 2019 Mila SohoniAdministrative Law

Mila Sohoni

“It is hard to sketch a river while sailing midstream,” says Jeff Pojanowski, as he begins an article that does a remarkable job of doing just that. Pojanowski’s forthcoming article offers an illuminating taxonomy of a vast array of administrative law theory and scholarship concerning the question of judicial review of agency action, which he organizes into three overarching frameworks or models. After sketching the river with aplomb, Pojanowski introduces us to a fourth model—“neoclassical administrative law”—and explains what the neoclassical framework would offer that earlier models lack. There, the image that might come to mind is not so much gazing at a river, but staring at a refrigerator. It is hard to decide what to have for dinner while standing in front of the refrigerator. A buffet’s worth of pretty good leftovers is probably sitting right there—but sometimes, to really hit the spot, you just have to roll up your sleeves and make something new anyway.

Pojanowski begins by noting the well-known “cracks” in the “comfortable, overlapping consensus” (P.3) of administrative law, including from academics and from the Court. Conventional administrative law doctrine is “under fire for being both too timid and too intrusive.” (P. 4.) Something new seems needed—but before getting to that new framework, Pojanowski presents a detailed sketch of three extant models. Continue reading "Standing In Front of the Refrigerator"

Congressional Administration

Oct 18, 2019 Jodi ShortAdministrative Law

Jodi Short

In Congressional Administration of Foreign Affairs, Rebecca Ingber directly challenges deep-seated assumptions about presidential power in the field of foreign affairs. Her account should prompt a rethinking of reigning assumptions about presidential power over administration of domestic affairs as well.

Ingber demonstrates that Congress can shape the President’s foreign policy and national security policies without constraining the President directly or dictating the substantive terms of foreign policy, but rather by structuring and reorienting the decision-making processes and relative powers of executive branch actors. She argues that Congressional input on matters of foreign affairs is normatively desirable, but there are legal, constitutional, and political hurdles to Congress substantively mandating foreign policy. Congressional administration avoids these hurdles and, according to Ingber, actually can be more effective than direct confrontation with the President. Continue reading "Congressional Administration"

I’m Just a Presidential Directive

Sep 27, 2019 Christopher WalkerAdministrative Law

Christopher Walker

On the first day of Legislation and Regulation, I kick off class by showing the classic Schoolhouse Rock music video I’m Just a Bill. We then spend the first half of the semester exploring how the legislative process actually works today and how that process affects statutory interpretation. At the start of the second half of the course, I show How a Bill Does Not Become a Law—Saturday Night Live’s witty take on the Schoolhouse Rock classic based on President Obama’s deferred-action immigration directives. We then spend the rest of the semester exploring how the regulatory process actually works and how that process affects regulatory and statutory interpretation.¹

Although we spend some time on what then-Professor Elena Kagan coined “presidential administration,” the regulation half of the course focuses on how federal agencies regulate and how courts review such regulatory activities. In that sense, we might be stuck a bit in Dan Farber and Anne Joseph O’Connell’s “lost world of administrative law.” After all, presidential directives—like President Obama’s executive actions on immigration—play a substantial role in the modern administrative state, and even more so, it seems, in both the Obama and Trump administrations. Yet we know little about the process by which these presidential directives are made, much less how they should be interpreted. Until now. In Presidential Laws and the Missing Interpretive Theory, Tara Leigh Grove sheds important empirical and theoretical light on how presidents make directives and what that means for interpretive theory. Continue reading "I’m Just a Presidential Directive"

How to Learn to Stop Worrying and Love the Administrative State

Aug 16, 2019 Jeffrey PojanowskiAdministrative Law

Jeffrey Pojanowski

Every administrative law professor has been there. Perhaps you are discussing hard-look review, notice-and-comment rulemaking, or procedural challenges to non-legislative rules. Students, perhaps puzzled by the courts’ (mostly the D.C. Circuit’s) indifference to the spare requirements of the Administrative Procedure Act, may wonder where this layer of doctrine comes from or, more importantly, why it is there. At that point you go back to the beginning of the class. Remember concerns about how the “fourth branch of the Government . . . has deranged our three branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking”?¹ Remember the theory about agency behavior that posits regulators’ incentives will steer them toward servicing the industry they are supposed to monitor in the public interest?² These additional procedures are here to compensate for those worries about legitimacy, capture, and public participation, thus justifying and improving the workings of the administrative state.

So far, so familiar. But then the plot takes a twist. Professor Nicholas Bagley bursts like Kool-Aid Man through the wall of your classroom. This intruder, however, is telling you to stop drinking the Procedural Kool-Aid that has sustained so many administrative law jurists and scholars. (Not so much “OH YEAH!” as “No.”) In The Procedure Fetish, forthcoming in the Michigan Law Review, Bagley contends that procedural constraints on agency action can sometimes bolster legitimacy and improve governance, but lawyers’ unexamined fealty to the cult of procedure does not hold up to scrutiny. Further, Bagley argues that for progressive lawyers and scholars this faith is misguided and plays into hands of those who seek to undermine an activist state. Although Bagley speaks primarily here to his progressive fellows-in-arms, this sharply argued paper merits the attention of administrative lawyers of every stripe. It changes the way I will teach the subject. (Also, it is a great read; the prose sings and sometimes even struts.) Continue reading "How to Learn to Stop Worrying and Love the Administrative State"

Gandhis of the Deep State

Jul 23, 2019 Michael E HerzAdministrative Law

Michael E Herz

It is a truism that agency organizational charts are at least in part aspirational or idealized. The political appointees at the top lack perfect control over the career employees beneath them in the hierarchy. When all are rowing in the same direction, such agency costs matter little and may go unnoticed. But suppose they are not. What if they barely perceive themselves as in the same boat?

Right now, in many or most federal agencies, it seems that the always present gap between political and career officials is extraordinarily, perhaps unprecedentedly, wide. We see calls for and examples of outright defiance. The historical moment raises the question: Can direct disobedience by agency rank and file ever be justified?

Here, in Civil Servant Disobedience, Jennifer Nou offers an answer. Continue reading "Gandhis of the Deep State"

Why Energy Companies Must Use the Power of Eminent Domain

Jul 5, 2019 Richard PierceAdministrative Law

Richard Pierce

Energy and Eminent Domain, by James Coleman and Alexandra Klass, is a must read for anyone who is interested in administrative law, government regulation, constitutional law, property law, energy law, environmental law, or climate change. I hope that I have not left anyone out, because I think that anyone who has any interest in law or public policy should read this article. Its substance is important and timely, and its narrative style makes it an easy and pleasant read.

The topic of the article is the use of eminent domain by privately-owned companies that construct oil and gas pipelines and electricity transmission lines. I suspect that many legal academics are not even aware of the routine use of eminent domain by private energy companies. I know that the Justices of the Supreme Court are not aware of that longstanding and ubiquitous practice. In its unanimous April 29, 2019 opinion in Thacker v. TVA, the Court held that TVA is immune from tort suits only when it performs a governmental function and not when it “acts like any other company producing and supplying electric power.”¹ The Court referred to use of the eminent domain power as an illustration of a uniquely governmental function that cannot be performed by a private company: “When the TVA exercises the power of eminent domain, taking landowners’ property for public purposes, no one would confuse it for a private company.”² Continue reading "Why Energy Companies Must Use the Power of Eminent Domain"

A Broad and Sobering View of Constitutional Safeguards

Jun 3, 2019 Eloise PasachoffAdministrative Law

Eloise Pasachoff

The September 2018 volume of the UCLA Law Review is a must-read page-turner (or its equivalent for the digital age) for followers of JOTWELL’s Administrative Law section. That volume collects the written essays originally delivered as talks at the Law Review’s symposium on The Safeguards of our Constitutional Republic, organized by UCLA Professor Jon Michaels, along with his colleagues Professors Kristin Eichensehr and Blake Emerson. As Michaels writes in his introductory essay for the volume, “The first two years of the Trump presidency have been marked by scandals, standoffs, travesties, and tragedies. Customs have been flouted, compacts broken, laws transgressed, responsibilities ignored, and individuals and communities threatened and debased.” In their contributions for the symposium, participants—distinguished public law scholars and civic institutional leaders from different corners of the nation—collectively “explored whether we are in a time of simple flux or full-blown crisis; whether any such crisis rises to the level of a constitutional—as opposed to just a political or cultural—dislocation; and how we can steer the ship of State back on course.”

While readers would be rewarded for perusing all of the essays, the one I want to focus on here is Mariano-Florentino Cuéllar’s essay, From Doctrine to Safeguards in American Constitutional Democracy, which he presented as the keynote address at the symposium. Justice Cuéllar (on the Supreme Court of California since 2015, and before that a member of the Stanford Law School faculty) soberly cautions “against facile rule-of-law optimism” about “the prominent role of courts in setting constitutional constraints on official power.” (P. 1400.) While Justice Cuéllar rightly does not name President Trump in the essay (in fact, he alludes to the “[d]ilemma” of “a judge seeking to thread the needle at a UCLA symposium when alluding to transgressions of norms by elected officials” (P. 1422)), the animating concern of the essay resonates closely with contemporary challenges in the administrative state and our republic more generally. Whether the legal question centers on arbitrary-and-capricious review, statutory authority, or constitutional permissibility, judicial review of the Trump administration’s actions is a daily occurrence, in ways both familiar and breathtaking. Continue reading "A Broad and Sobering View of Constitutional Safeguards"