Turning the Endangered Species Act inside Out

Within a week, both the Fifth and D.C. Circuits upheld the takings prohibitions of the Endangered Species Act (ESA) of 1973, as applied to species found only in single states, against Commerce Clause challenges. Both cases reach the same result, but the legal analysis used to get there could hardly be more different. In GDF Realty, the Fifth Circuit found the requisite substantial impact on commerce by treating the species themselves as commodities and aggregating the economic impact of all endangered species takings . The D.C. Circuit, by contrast, held in Rancho Viejo that the true object of ESA regulation is not endangered species, but the commercial development that threatens them, which plainly falls within Congress\u27s powers to regulate under the Commerce Clause. The two courts saved the threatened arroyo toads and subterranean invertebrates, but they read the Endangered Species Act as if it were two different statutes.This curious divergence can only be understood in light of the unsettled state of Commerce Clause jurisprudence following United States v. Lopez and United States v. Morrison. Those two decisions upended fifty years of conventional wisdom about the limits on Congress\u27s power under the Commerce Clause – namely, that there were effectively none – and left lower courts with an uncertain new framework to apply. Of the two cases considered here, Rancho Viejo represents the abler attempt to square the ESA with the new Commerce Clause doctrine, because its analysis is more objective than GDF Realty\u27s and more clearly satisfies the strictures of Lopez and Morrison. But like GDF Realty, Rancho Viejo must present the ESA\u27s impact on commerce, which is peripheral in the statutory design, as the Act\u27s core object – must turn the ESA inside out, so to speak – in order to justify it under the Commerce Clause. This cramped conception of the statute does not convincingly justify all of its applications. The shortcomings of Rancho Viejo do not represent sloppiness on the part of the D.C. Circuit, however. Instead, they reflect the failure of the Lopez and Morrison framework to meet the Supreme Court\u27s stated aspiration to distinguish between what is truly national and what is truly local

Minimally Democratic Administrative Law

A persistent challenge for the American administrative state is reconciling the vast powers of unelected agencies with our commitment to government by the people. Many features of contemporary administrative law — from the right to participate in agency processes, to the reason-giving requirements on agencies, to the presidential review of rulemaking — have been justified, at least in part, as means to square the realities of agency power with our democratic commitments. At the root of any such effort there lies a theory of democracy, whether fully articulated or only implicit: some conception of what democracy is about, and what democracy requires. While several conceptions of democracy have influenced administrative law over the years, administrative law has never come to terms with a strand of democratic thought that I term democratic minimalism. Democratic minimalists argue that conventional theories of democracy set unrealistic benchmarks to evaluate government practices, because they expect more than is reasonable of citizens, leaders, and institutions. Accordingly, minimalists seek to offer a less ambitious, more attainable account of democratic governance that nonetheless captures core normative commitments. This Article presents the first account of minimally democratic administrative law. The Article identifies the conceptions of democracy that have dominated thinking about administrative law to this point and highlights challenges to them before outlining a competing, minimalist conception of democracy. It then revisits contemporary debates over how courts should review agency action from a minimalist standpoint

Proportionality Review in Administrative Law

At the most basic level, the principle of proportionality captures the common-sensical proposition that, when the government acts, the means it chooses should be well-adapted to achieve the ends it is pursuing. The proportionality principle is an admonition, as German administrative law scholar Fritz Fleiner famously wrote many decades ago, that “the police should not shoot at sparrows with cannons”. The use of proportionality review in constitutional and international law has received ample attention from scholars in recent years, but less has been said about proportionality’s role within administrative law. This piece suggest that we can understand the differences in how proportionality is used in the administrative law of different jurisdictions in terms of three principal axes of variation. Systems differ with respect to how extensively proportionality is employed, how intensively review is conducted, and how discursively courts present their analysis. Notwithstanding the substantial cross-national variation in how proportionality is used, there are underlying regularities that lend support to the claim that proportionality amounts to a master concept of public law.https://elibrary.law.psu.edu/book_contributions/1010/thumbnail.jp

Turning the Endangered Species Act inside Out

Within a week, both the Fifth and D.C. Circuits upheld the takings prohibitions of the Endangered Species Act (ESA) of 1973, as applied to species found only in single states, against Commerce Clause challenges. Both cases reach the same result, but the legal analysis used to get there could hardly be more different. In GDF Realty, the Fifth Circuit found the requisite substantial impact on commerce by treating the species themselves as commodities and aggregating the economic impact of all endangered species takings . The D.C. Circuit, by contrast, held in Rancho Viejo that the true object of ESA regulation is not endangered species, but the commercial development that threatens them, which plainly falls within Congress\u27s powers to regulate under the Commerce Clause. The two courts saved the threatened arroyo toads and subterranean invertebrates, but they read the Endangered Species Act as if it were two different statutes.This curious divergence can only be understood in light of the unsettled state of Commerce Clause jurisprudence following United States v. Lopez and United States v. Morrison. Those two decisions upended fifty years of conventional wisdom about the limits on Congress\u27s power under the Commerce Clause – namely, that there were effectively none – and left lower courts with an uncertain new framework to apply. Of the two cases considered here, Rancho Viejo represents the abler attempt to square the ESA with the new Commerce Clause doctrine, because its analysis is more objective than GDF Realty\u27s and more clearly satisfies the strictures of Lopez and Morrison. But like GDF Realty, Rancho Viejo must present the ESA\u27s impact on commerce, which is peripheral in the statutory design, as the Act\u27s core object – must turn the ESA inside out, so to speak – in order to justify it under the Commerce Clause. This cramped conception of the statute does not convincingly justify all of its applications. The shortcomings of Rancho Viejo do not represent sloppiness on the part of the D.C. Circuit, however. Instead, they reflect the failure of the Lopez and Morrison framework to meet the Supreme Court\u27s stated aspiration to distinguish between what is truly national and what is truly local

Searching for Proportionality in U.S. Administrative Law

There is no such thing as “proportionality review” in American administrative law, but instead, a number of doctrines that courts deploy to evaluate agency exercises of discretion. In some respects, these frameworks for review resemble proportionality in operation, but there are also notable differences. This essay surveys the doctrines governing judicial review of administrative discretion in the United States, highlighting three distinguishing features of the American approach. First, American judicial review is characterized by a high degree of unpredictability, not only with respect to outcomes, but often with respect to what framework of review is applicable. Second, while classical proportionality review is designed to detect and correct a particular kind of administrative failure — an overreach, in which the government uses measures that are excessive in relation to the ends they are designed to achieve — the American approach is more symmetrical, in that the agency bears the same burden of justification whether it is claimed that its actions go too far or not far enough. Third, reviewing courts in American administrative law tend to “proceduralize” substantive review, focusing more on the agency’s failures to thoroughly ventilate the relevant issues than the merits of the agency’s conclusions, with consequences both for the burdens agencies face before reviewing courts and for the ultimate ability of agencies to realize favored policy optionshttps://elibrary.law.psu.edu/book_contributions/1008/thumbnail.jp

Some Kind of Right

The Right to Be Forgotten II crystallizes one lesson from Europe’s rights revolution: persons should be able to call on some kind of right to protect their important interests whenever those interests are threatened under the law. Which rights instrument should be deployed, and by what court, become secondary concerns. The decision doubtless involves some self-aggrandizement by the German Federal Constitutional Court (GFCC), which asserts for itself a new role in protecting European fundamental rights, but it is no criticism of the Right to Be Forgotten II to say that it advances the GFCC’s role in European governance, so long as the decision also makes sense in the context of the European and German law. I argue that it does, for a specific reason. The Right to Be Forgotten II represents a sensible approach to managing the complex pluralism of the legal environment in which Germany and other EU member states find themselves

Strategic Delegation, Discretion, and Deference: Explaining the Comparative Law of Administrative Review

This paper offers a theory to explain cross-national variation in administrative law doctrines and practices. Administrative law regimes vary along three primary dimensions: the scope of delegation to agencies, agencies’ exercise of discretion, and judicial practices of deference to agencies. Working with a principal-agent framework, we show how cross-national differences in institutions’ capacities and the environments they face encourage the adoption of divergent strategies that lead to a variety of distinct, stable, equilibrium outcomes. We apply our model to explain patterns of administrative law in the United States, Germany, France, and Commonwealth jurisdictions