\u3ci\u3eChevron\u3c/i\u3e Flip-Flops of a Different Sort - Understanding the Shifting Politics of Deference

Like vaccinations, voter fraud, guns, taking a knee, and, well, everything, views on Chevron deference have become not just ideologically tinged but ideologically determined. Progressives are Chevron enthusiasts; conservatives are Chevron skeptics. Chevron is under siege, and the battle lines are familiar. Yet, on its face, Chevron is politically neutral. It increases agency power at the expense of judicial power; whether that is politically helpful depends on whether your team controls the White House or if it controls the courts. Furthermore, the current ideological array has not always been the case. When Chevron was decided, the enthusiasts were on the right and the skeptics on the left. So what is going on

Gandhis of the Deep State

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

Institutional Design by Default

The central concern of administrative law is how to control agency discretion. Agencies are handed enormous authority, and administrative law consists primarily – indeed, almost exclusively – of a set of doctrines designed to inform, curb, or enable other actors to oversee discretionary agency actions. Administrative law is preoccupied with establishing procedures to prevent agency abuse and designing oversight by non-agency players – the President, Congress, private stakeholders, and, most obviously, the judiciary. All the core doctrines of administrative law are generally understood as implementing basic decisions regarding institutional choice: who does what? How should power be divided up amongst these institutions

New Wine, Old Bottles, and a Do-Nothing Congress

The Rivers and Harbors Act of 1899 was adopted to protect against hazards to and interference with navigation. It prohibited “creation of any obstruction to the navigable capacity of any of the waters of the United States” or altering or filling navigable waters (§10) and also made it unlawful “to throw, discharge, or deposit . . . any refuse matter” into navigable waters “whereby navigation shall or may be impeded or obstructed,” although the Corps of Engineers could permit such a discharge if “anchorage and navigation will not be injured thereby” (§13). For two-thirds of a century, those provisions operated as one would expect. Then came the modern environmental movement, and in short order the courts and the executive branch turned these provisions about obstruction to navigation into a water-pollution control regime. As President Nixon drily put it in issuing an executive order that created a sweeping new pollution permit program under §13, the Act’s “potential for water pollution control has only recently been recognized.” Richard Nixon, Statement on Signing Executive Order Establishing a Water Quality Enforcement Program (Dec. 23, 1970)

Once More unto the Breach, Dear Friends - Levin on the Guidance Exception

The late, great Kenneth Culp Davis was known for many things, but humility was not among them. He knew the answers; he knew them better than did the Supreme Court; and he knew that he knew them. So it is remarkable that there was a problem in administrative law he found “baffling.” That was the distinction between legislative rules, interpretive rules, and statements of policy

Design of catalytic monoliths for closed-cycle carbon dioxide lasers

Pulsed carbon dioxide (CO2) lasers have many applications in aeronautics, space research, weather monitoring and other areas. Full exploitation of the potential of these lasers in hampered by the dissociation of CO2 that occurs during laser operation. The development of closed-cycle CO2 lasers requires active CO-O2 recombination (CO oxidation) catalyst and design methods for implementation of catalysts in CO2 laser systems. A monolith catalyst section model and associated design computer program, LASCAT, are presented to assist in the design of a monolith catalyst section of a closed cycle CO2 laser system. Using LASCAT,the designer is able to specify a number of system parameters and determine the monolith section performance. Trade-offs between the catalyst activity, catalyst dimensions, monolith dimensions, pressure drop, O2 conversion, and other variables can be explored and adjusted to meet system design specifications. An introduction describes a typical closed-cycle CO2 system, and indicates some advantages of a closed cycle laser system over an open cycle system and some advantages of monolith support over other types of supports. The development and use of a monolith catalyst model is presented. The results of a design study and a discussion of general design rules are given

Stubborn Things: An Empirical Approach to Facts, Opinions, and the First Amendment

This essay offers an empirical approach to the problem, rooted in an argument that the underlying rationale for the fact/opinion distinction in compelled speech doctrine tells us something about how this distinction should be policed. Commercial speech enjoys protection by virtue of its value to listeners, it is from the listener\u27s vantage point, then, that courts should assess whether a compelled disclosure is fact or opinion. And if we are interested in learning how disclosures will affect listeners, we might try asking them, just as courts adjudicating trademark suits frequently use consumer surveys to determine how customers understand the meaning of logos and slogans. To this end, the essay reports the results of an original survey that presented respondents with the disclosures at issue in a number of recent compelled speech cases. The survey asked the respondents to categorize these disclosures as conveying facts or opinions, and the respondents ultimately proved adept at distinguishing between the two-an outcome that suggests that consumer surveys could be a valuable resource for courts as they grapple with disclosures in the First Amendment context. The survey also indicated that the respondents had dramatically different understandings than the D.C. Circuit of the controversial disclosures at issue in NAM and R.J. Reynolds This finding offers a new and important perspective on how courts should treat these, and similar, forms of mandated speech in the ongoing legal battles over their constitutional validity