Major Questions About Agency Authority: A Practical Discussion on the Impact of Limiting Administrative Authority

The Administrative Law Review’s Fall 2022 Symposium humanized administrative law while tackling substantive administrative law issues. With the human impact of administrative law as the touchpoint, the panels explored the practical implications of deregulation, nondelegation, and major questions. Resultant discussion transcribed below allowed for a thoughtful conversation, but one that was at the same time accessible to those who do not routinely practice in the space. We thank Professors Gillian Metzger, William Buzbee, Aram Gavoor, Kimberly Wehle, Jonas Monast, and Administrative Law Judge Doug Rawald for their contributions

The Unintended Consequences of International Trade Law Adjudicatory Exceptionalism

On account of the fact that first impression judicial review over federal questions of international trade law is committed to the U.S. Court of International Trade, a national Article III court with appellate review vesting with the U.S. Court of Appeals for the Federal Circuit, advocates often litigate their cases in a vacuum from other areas of law. This essay argues that such an approach is unsupported by the statutory framework of the U.S. Court of International Trade, which was meant to operate under traditional Article III administrative law review norms. This essay also argues that advocates would strategically benefit from connecting international trade law advocacy to broader administrative law and statutory interpretation law for the benefit of appellate review before the U.S. Supreme Court

The Impending Judicial Regulation of Artificial Intelligence in the Administrative State

Artificial Intelligence (AI) algorithms are being deployed in executive branch agencies at a brisk pace and with no executive branch account for their use. The proliferation of AI in government raises civil rights concerns because it has been found—at a general level—to succumb to racial and gender biases when AI algorithms are incompetently or intentionally trained. Policy solutions have been put forth to mitigate the issue of such AI uses in government, some of which are in the process of being implemented. Despite these gains, the political branches of the federal government have limited time to act before their primary policymaking authority is diluted or potentially ceded to the Judiciary. This essay argues that in the absence of timely action of the Executive or Legislative branches to establish procedures to mitigate administrative agency AI accountability and transparency gaps, the Judiciary may dictate such procedures via remands under the administrative record provision of the Administrative Procedure Act of 1946 as it first did 50 years ago with informal adjudications in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)

The Forgotten FISA Court: Exploring the Inactivity of the ATRC

The Alien Terrorist Removal Court was established in 1996 after immense political pressure from the Reagan, Bush, and Clinton administrations and wide bipartisan support to serve as a forum to prosecute the most complex and difficult national security immigration removal cases while protecting vital classified information from public disclosure. Yet, after twenty-three years, this Article III court has not heard a single case. This article provides a fresh and critical inquiry into this veritable zombie court that has fallen from the public consciousness, yet still exists with a standing cadre of designated judges. It fills a significant gap in the conjunction of national security and immigration literature as the most comprehensive scholarly inquiry that has been done on the ATRC. Our novel conclusions include the reasons why the court has not ever heard a case and an analysis into its continued legitimacy despite subsequent War on Terror-era enactments that streamline the removal of most classes of noncitizen national security threats. We uniquely establish that the ATRC was dead on arrival due to its unworkable, yet legislatively remediable procedural flaws. We examine the dynamic history of this forgotten court, analyze its structure, and propose commonsense legislative revision that would render this important national security law enforcement tool viable

Administrative Investigations

This Article establishes the subject of federal administrative investigations as a new area of study in administrative law. While the literature has addressed investigations by specific agencies and congressional investigations, there is no general account for the trans-substantive constitutional value of administrative investigations. This Article provides such an account by exploring the positive law, agency behaviors, and constraints pertaining to this unresearched field. It concludes with some urgency that the Administrative Procedure Act of 1946—the statute that stands as a bill of rights for the Administrative State—does not serve to regulate administrative investigations and that the Article III courts have held that such agency behavior is essentially unreviewable since the mid-twentieth century. It identifies the historical guideposts of administrative investigations and analyzes the substantial power agencies wield when they investigate. It surveys and analyzes the limiting principles in law that operate as nominal constraints to unlawful administrative investigative behavior. This Article concludes by considering procedural and substantive constraints that could be implemented to align agency investigations with constitutional and statutory norms without sacrificing their ability to fulfill their critical missions for the American public

Snap: How the Moral Elasticity of the Denaturalization Statute Goes Too Far

Comprehensive immigration reform is a popular topic in Congress. While many reform bills have been offered, none have addressed the significant substantive and procedural issues surrounding denaturalization, the process where the federal government may seek to have a naturalized persons citizenship revoked in federal court if his citizenship was unlawfully or fraudulently procured.Though denaturalization serves public policy as a final check on naturalization fraud, existing law also permits the government to denaturalize an individual solely for speech and expressive association that occurs after one acquires citizenship. This provision, 8 U.S.C. § 1451(c), violates naturalized citizens First Amendment rights to free speech and association, interferes with their Fifth Amendment right of equal protection, and also has a tendency to overpenalize otherwise innocent conduct. Moreover, authority to initiate a denaturalization proceeding is spread among the Attorney General and all U.S. Attorneys. Congress has not codified an evidentiary burden for denaturalization since the process was initially enacted in 1906. To protect the constitutional rights of all U.S. citizens and to provide legislative clarity, Congress should excise 8 U.S.C. § 1451(c) from immigration law, vest sole authority to initiate denaturalization proceedings with the Attorney General, and codify the clear, unequivocal, and convincing evidentiary burden

A New Approach to Measuring AI Bias in Human Resources Functions: Model Risk Management

This scholarship is the first to offer a commonsense, durable, implementable, and traceable solution to the problem of artificial intelligence bias in the human resources industry by proposing the application of the Model Risk Management structure that has proven successful in the financial services industry since the Great Recession of 2008. Such industry regulation will likely reduce the incidents of EEOC charges of violations of Title VII of the Civil Rights Act of 1964 and produce a more stable and safe regulatory environment for firms. Most importantly, the promise of an American workplace with less disparate treatment and disparate impact among employees on protected grounds will be achieved

Chaidez v. United States - You Can\u27t Go Home Again

This article examines a 2013 Supreme Court decision, Chaidez v. United States, in which the Court declined to apply retroactively another recent decision, Padilla v. Kentucky. To many observers, Chaidez appears to be a discrete departure from previous Sixth Amendment right to counsel jurisprudence. On a personal level, noncitizens who pled guilty to a crime without being apprised of the plea’s removal risks are now unable to seek redress under Padilla and return to their homes in the United States. This article examines relevant Sixth Amendment and retroactivity jurisprudence and proposes an explanation for the Court’s apparent aboutface