Centralized Oversight of the Regulatory State

Born out of a Reagan-era desire to minimize regulatory costs, and not fundamentally reconsidered since its inception, the centralized review of agency rulemakings has arguably become the most important institutional feature of the regulatory state. Yet it is a puzzling feature: although centralized review is sometimes justified on the ground it could harmonize the uncoordinated sprawl of the federal bureaucracy, the agency tasked with regulatory review, the Office of Management and Budget (OMB), has never embraced that role. It has instead doggedly clung to its original cost-reduction mission, justifying its function as a check on the federal bureaucracy with reference to the pervasive belief that agencies will systematically over-regulate. This article shows why this belief is wrong. The claim that agencies are systematically biased in favor of regulation finds little support in public choice theory, the political science literature, or elsewhere. In any event, theories predicting rampant over-regulation are no more plausible than alternative theories suggesting that agencies will routinely under regulate. Even if zealous agencies captured by powerful interest groups did characterize the regulatory state, OMB review is a curious and poorly designed counterweight. There is no reason to believe that OMB's location in the Executive Office of the President will inoculate OMB from the pathologies that afflict other agencies, and some reason to think that it will exacerbate them. As a response to these problems, we urge a reconsideration of the foundational role that centralized review should play in our regulatory state, and a revival and re-conceptualization of the neglected principles of harmonization that once ostensibly animated it.

Executive Power and the ACA

As with any law of its complexity and ambition, the Affordable Care Act (ACA) vests in the sitting president broad implementation discretion. The law is not a blank check: in many ways both large and small, the ACA shapes and constrains the exercise of executive power. But Congress has neither the institutional resources nor the attention span to micromanage the rollout of a massive health program. It has no choice but to delegate. Naturally, both President Obama and President Trump have drawn on their authority to tailor the ACA to their policy preferences. Neither president, however, has been able to turn to Congress for more sweeping changes to the law. Stymied in Congress and buffeted by the partisan combat over Obamacare, they have come under enormous pressure to ignore legal constraints that stand in the way of their political objectives. The story of the ACA\u27s implementation is thus a story of two presidents who have tested-and at times exceeded-the limits of their legal powers. Yet Obama and Trump have committed very different legal sins. President Obama\u27s lawbreaking reflected his efforts to cope with the ambiguities, omissions, and outright mistakes that are common in any massive law and were especially common in the ACA. To implement the bill in the face of congressional resistance, the Obama administration cut corners. President Trump, however, exploited his position as the head of the executive branch to mount an unconstitutional campaign to sabotage the very law he is charged with faithfully executing. It would\u27 be comforting to treat these legal violations as aberrant responses to particular features of the ACA or to the intensity of debate over health reform. But they cannot be so easily dismissed. The ACA is the most assertive effort in 50 years to make good on the claim that health care is a right, not a privilege. That is another way of saying that the have-nots have a moral claim to the resources and privileges of the haves. The campaign against the law is the reactionary countermobilization of those who believe that the principles animating the ACA pose an incipient threat to the established order. No wonder that health reform provoked the most rancorous battle over a piece of domestic legislation since the adoption of the Civil Rights Act in 1964. The fight over the ACA may therefore offer a disquieting preview of what may come if Congress moves to address the nation\u27s other yawning inequalities. Like the ACA, future laws will delegate wide authority to the president. They too will contain unanticipated flaws. And they will also be subject to implementation by hostile presidents. Legal constraints on the executive branch buckled in the white-hot heat of the battle over the ACA. They could melt away altogether in the next war

Remedial Restraint in Administrative Law

When a court determines that an agency action violates the Administrative Procedure Act, the conventional remedy is to invalidate the action and remand to the agency. Only rarely do the courts entertain the possibility of holding agency errors harmless. The courts’ strict approach to error holds some appeal: Better a hard rule that encourages procedural fastidiousness than a remedial standard that might tempt agencies to cut corners. But the benefits of this rule-bound approach are more elusive, and the costs much larger, than is commonly assumed. Across a wide range of cases, the reflexive invalidation of agency action appears wildly excessive. Although the adoption of a context-sensitive remedial standard would increase decision costs and generate inconsistency, the exercise of remedial restraint in appropriate cases may prove superior to a clumsy approach that treats every trans­gression as worthy of equal sanction

Why It’s Called the Affordable Care Act

The Patient Protection and Affordable Care Act of 2010 (“ACA”) raises numerous policy and legal issues, but none have attracted as much attention from lawyers as Section 1501. This provision, titled “Maintenance of Mini-mum Essential Coverage,” but better known as the “individual mandate,” requires most Americans to obtain health insurance for themselves and their dependents by 2014. 1 We are dismayed that the narrow issue of the mandate and the narrower issue of free riding have garnered so much attention when our nation’s health-care system suffers from countless problems. By im-proving quality, controlling costs, and extending coverage to the uninsured, the ACA means to address many of those problems. And it’s about time. The United States has lower insurance coverage rates and lower life expectancy than most developed countries, and our system does poorly on several di-mensions of quality. Worse still, we spend much more on health care than any other country—$2.5 trillion, or 17.6 percent of gross domestic product, in 2009.2 These measures of total spending mask grave distributional con-cerns: 52 million people went without insurance during some part of 2010

The Procedure Fetish

The strict procedural rules that characterize modern administrative law are said to be necessary to sustain the fragile legitimacy of a powerful and constitutionally suspect administrative state. We are likewise told that they are essential to public accountability because they prevent factional interests from capturing agencies. Yet the legitimacy-and-accountability narrative at the heart of administrative law is both overdrawn and harmful. Procedural rules have a role to play in preserving legitimacy and discouraging capture, but they advance those goals more obliquely than is commonly assumed and may exacerbate the very problems they aim to fix. This Article aims to draw into question the administrative lawyer’s instinctive faith in procedure, to reorient discussion to the trade-offs at the heart of any system designed to structure government action, and to soften resistance to a reform agenda that would undo counterproductive procedural rules. Administrative law could achieve more by doing less

Agency Hygiene

Prof. Bagley notes that reshaping captured agencies using the structural reforms suggested by Prof. Barkow may be politically infeasible and offers an alternative solution for eliminating interest-group capture. First, he suggests establishing a body within the Executive Branch that proactively investigates and documents capture dynamics. Second, he suggests creating legislative mechanisms that will encourage Congressional action on the body’s recommendations, and perhaps, more provocatively, requiring the Executive Branch to enact any such recommendations in the absence of Congress’s formal objection

The Legality of Delaying Key Elements of the ACA.

Under the Affordable Care Act (ACA), the employer mandate — the requirement that most employers offer health insurance to their workers or pay a tax penalty — was scheduled to go into effect on January 1, 2014. Last summer, however, the Obama administration announced that it was delaying the mandate for a year. The administration has now extended the delay for midsize firms until 2016

Three Words and the Future of the Affordable Care Act

As an essential part of its effort to achieve near universal coverage, the Affordable Care Act (ACA) extends sizable tax credits to most people who buy insurance on the newly established health care exchanges. Yet several lawsuits have been filed challenging the availability of those tax credits in the thirty-four states that refused to set up their own exchanges. The lawsuits are premised on a strained interpretation of the ACA that, if accepted, would make a hash of other provisions of the statute and undermine its effort to extend coverage to the uninsured. The courts should reject this latest effort to dismantle a critical feature of the ACA

The Puzzling Presumption of Reviewability

The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but was commonly thought to be unconstitutional. The ostensible statutory source for the presumption - the Administrative Procedure Act - nowhere instructs courts to strain to read statutes to avoid the preclusion of judicial review. And although the text and structure of the Constitution may prohibit Congress from precluding review of constitutional claims, a presumption responsive to constitutional concerns would favor review of those claims, not any and all claims of agency wrongdoing. As for policy, Congress has the constitutional authority, democratic legitimacy, and institutional capacity to make fact-intensive and value-laden judgments of how best to weigh the desire to qfford private relief against the disruption to the smooth administration of public programs that such relief may entail. Courts do not. When the courts invoke the presumption to contort statutes that appear to preclude review to nonetheless permit it, they dishonor Congress\u27s choices and limit its ability to tailor administrative and regulatory schemes to their particular contexts. The courts should end this practice. Where the beit construction of a statute indicates that Congress meant to preclude judicial review, the courts should no longer insist that their participation is indispensable

Is Obamacare Really Unconstitutional?

On December 18, 2019, just 3 days after the close of open enrollment on the exchanges and on the same day the House of Representatives impeached President Donald Trump, a conservative appeals court handed the President a major victory in his crusade against the Affordable Care Act (ACA). Over a stern dissent, the U.S. Court of Appeals for the Fifth Circuit declared that the law’s individual mandate is unconstitutional and that the entire rest of the law might therefore be invalid