The Roberts Court and Administrative Law

This article assesses where the Supreme Court stands on administrative law after the 2018 term, focusing on Kisor v. Wilkie and Department of Commerce v. New York. Over the last decade, the Roberts Court had demonstrated increasing concerns about an out-of-control federal bureaucracy at odds with the constitutional order, but hadn’t pulled back significantly on administrative governance in practice. The 2018 term provided the Court with a chance to put its might where its mouth was. Yet administrative law’s denouement did not come; established administrative law doctrines remain in force, albeit narrowed. The 2018 Term cases demonstrate that the Roberts Court is deeply divided on administrative law along clear ideological lines. The cases also illuminate several core analytic themes and tensions in the Roberts Court’s administrative law jurisprudence, in particular disagreements over: the relationship of law and policy; formalism and nonformalism; the role of history; and administrative common law versus Administrative Procedure Act originalism. Taking a further step back, two contrasting frames emerge from the Roberts Court’s 2018 term administrative law opinions. One is radical, with a categorical and uncompromising formalism, commitment to limited government and aggressive judicial review, insistently originalist stance, and rejection of contemporary judicial review doctrines as at odds with traditional understandings of judicial power and the meaning of the APA. The other is incrementalist and common law in character, encompassing justices with a broader range of views about constitutional structure and administrative government but united in their unwillingness to disrupt existing governance regimes, at least not all at once. Which of these analytic frames will ultimately prevail still remains an open question, but incrementalism was plainly the victor in the 2018 Term’s administrative law decisions. That is significant, but should also not obscure that there was unity across the Court in urging greater judicial scrutiny of administrative action. Moreover, despite invocations of the importance of bureaucratic expertise, these decisions share the concerns with unaccountable, aggrandized, and arbitrary administrative power that characterize the Roberts Court’s administrative jurisprudence more widely. Notably lacking is reference to the ways that the administrative state operates to constrain power, render it accountable, and advance individual liberty. Absent a more balanced view of the administrative state, the Roberts Court is unlikely to develop a coherent approach to administrative law

Through the Looking Glass to a Shared Reflection: The Evolving Relationship between Administrative Law and Financial Regulation

Administrative law and financial regulation might be thought closely connected, sharing a focus on federal regulation and intertwined at key historical junctures such as the birth of the New Deal administrative state. Yet, oddly, in many ways these two fields stand today poles apart, divided not simply by their separation in law school curricula and faculty, but even more by opposite precepts and framing principles. Modern U.S. administrative law takes notice-and-comment rulemaking as the paradigmatic example of administrative action, with the goal of such regulation often being to compensate for market deficiencies. Accountability, particularly political accountability through presidential and congressional oversight and legal accountability through the courts, is administrative law’s central obsession. While financial regulatory agencies engage in notice-and-comment rulemaking, their regulatory mode is often more informal and hidden from public view, with the market serving as much as an arbiter of successful financial regulation as the object of regulators’ attention. Here the defining structural precept is not accountability but independence, and the vast majority of financial regulators enjoy a range of independence protections, including protection from removal, budgetary autonomy, and exemption from White House regulatory oversight. This essay explores the historical contrasts between administrative law and financial regulation, with the aim of elucidating the contingent and contestable nature of each field’s framing presumptions. Its aim is to provide the basis for a sustained and reciprocal engagement that will provide room for rethinking regulatory approaches in both. Indeed, in part as a result of the financial crisis that rethinking is already underway, and the essay also identifies ways in which the historical differences between these two fields are abating

The Story of Vermont Yankee: A Cautionary Tale of Judicial Review and Nuclear Waste

This Essay explores the puzzle of Vermont Yankee v. NRDC. Vermont Yankee stands as a definitive rejection of judicial efforts to control burgeoning informal rulemaking by adding to the procedural requirements contained in the Administrative Procedure Act. Yet judicial expansion of the APA\u27s procedural requirements has continued apace, and the Court\u27s simultaneous sanction of searching substantive scrutiny sits oddly with its excoriation of the D.C. Circuit for that court\u27s perceived procedural excesses. To understand Vermont Yankee, the Essay puts the decision in its administrative and judicial context, exploring the case law and practical dilemmas facing administrators, advocates, and judges as the case unfolded. The Essay argues Vermont Yankee is very much a creature of its time, when dramatic expansions in congressionally-mandated regulation led to multiple political and institutional struggles – between advocates and agencies, between agencies and courts, and between the Supreme Court and the D.C. Circuit. But the cautionary tale of Vermont Yankee has broader significance and demonstrates the challenges facing judicial review in the modern administrative state

Administrative Law as the New Federalism

Few doubt the tremendous impact the modern national administrative state has had on our federal system. Yet the relationship between federalism and administrative law remains strangely inchoate and unanalyzed. Although administrative law\u27s constitutional dimensions are generally recognized to have significant federalism implications, more run-of-the-mill administrative law concerns are rarely approached through a federalism lens. Recent Supreme Court case law suggests that the blinders to the relationship of federalism and administrative law may be lifting. In a number of highly contentious recent decisions, the Court has refused curb Congress\u27s regulatory authority on constitutional grounds, but nonetheless indicated that federalism concerns with protecting the states\u27 independent regulatory role nonetheless retain traction. The means by which the Court appears to be addressing such concerns, however, is administrative law. As a result, administrative law may be becoming the new federalism. This article aims to explore how the Court may be employing administrative law as a surrogate for constitutional federalism and to assess how well administrative law performs this surrogacy role. I conclude that administrative law has important federalism-reinforcing features, but that the Court\u27s decisions to date have failed to fully develop administrative law\u27s federalism potential. I also argue that the best approach – not only for the functioning of federal agencies but, critically, for the continued vibrancy of federalism in the world of the modern federal administrative state – is for the Court (and Congress and the President) to advance federalism within the overall rubric of administrative law, rather than to treat federalism as a more absolute restriction on agency action absent express congressional authorization. The article consists of four parts. Part I contains an analysis of recent Supreme Court precedent, focusing in particular on five decisions addressing the intersection of federalism and administrative law. Part II advances the claim that administrative law may be becoming the new federalism. Here I contend that the Court is unwilling to curb Congress on federalism grounds and that federalism concerns instead are being incorporated into administrative law. I then examine two ways in which federalism concerns are being addressed through an administrative law framework: application of ordinary administrative law to the benefit of the states and development of more extraordinary federalism-inspired administrative law analyses. I also discuss the current administrative preemption debate, which I contend approaches the relationship between federalism and administrative law in overly narrow terms, emphasizing the conflict between federalism and administrative law rather than their potential synergies. Part III switches to a more normative and theoretical perspective. I begin with an analysis of whether using administrative law as a surrogate for federalism concerns is a legitimate judicial undertaking. I conclude that it is, and underscore the benefits of the administrative law approach over other subconstitutional federalism doctrines. I then examine whether, even if legitimate, using administrative law as a surrogate for federalism concerns is likely to prove effective. In addition to rejecting claims that administrative agencies are categorically ill-suited to protecting state regulatory autonomy, I emphasize the need to distinguish between agencies and administrative law. In that vein, I argue that three features of administrative law reinforce its federalism potential: its procedural mechanisms, in particular notice-and-comment rulemaking; its doctrinal and institutional capaciousness; and its very status as subconstitutional law. Part IV assesses the implications of this analysis of administrative law\u27s federalism potential. One implication is that the Court should employ administrative law with an eye to reinforcing agencies\u27 sensitivity and responsiveness to state interests. A second is that federalism concerns raised by federal agency action may be best advanced through ordinary administrative law, albeit with express recognition of how state interests factor into judicial review. Although the Court\u27s recent decisions make some helpful steps in this direction, their lack of clarity and reflection on how federalism concerns should factor into application of administrative law limit their generative potential

Serial Litigation in Administrative Law: What Can Repeat Cases Tell Us about Judicial Review

In Deference and Dialogue in Administrative Law, Emily Meazell takes up the topic of serial administrative law litigation. These repeated rounds of challenges and remands, which Meazell finds are particularly prevalent in contexts of risk regulation, provide a new lens on court-agency relationships. Meazell closely reviews several instances of such litigation, spanning topics as diverse as endangered species, potential workplace carcinogens, and financial qualifications of nuclear plant operators. She argues that such close examination reveals a process of dialogue, with agencies ultimately (if not immediately) responding to judicial concerns and courts in turn acknowledging administrative responses

Appointments, Innovation, and the Judicial-Political Divide

The federal appointments process is having its proverbial day in the sun. The appointment and removal of federal officers figured centrally in the Supreme Court’s two major recent separation-of powers decisions, Free Enterprise Fund v. Public Company Accounting Oversight Board and National Labor Relations Board v. Noel Canning. The appointments process has featured even more prominently in the political sphere, figuring in a number of congressional-presidential confrontations. Such simultaneous top billing in the judicial and political spheres is hardly coincidental. After all, it was President Obama’s use of the Recess Appointments Clause in response to pro forma sessions that triggered the Court’s engagement with the Clause in Noel Canning. But the relationship between the Clause’s judicial and political manifestations is more complicated, and more fraught, than mere practical causality. The Roberts Court’s approach to appointments and separation of powers issues stands out for its Burkean resistance to innovation. By contrast, the dominant characteristic of appointments in the political sphere is novelty and embrace of new institutional arrangements. This Article explores these differing judicial and political approaches to innovation, and the implications of the emerging contrast for federal administration. Although the Court’s resistance to innovation might appear a useful prophylactic against efforts to bend the Constitution in the name of political expediency, the constitutional basis for such a general suspicion of innovation is lacking. Particularly given the political transformations occurring in response to polarization, a stance of suspicion sets the Court on a course of confrontation with the other two branches that is hard to justify. A more nuanced approach that pays greater attention to political reality would allow the Court to both better titrate its interventions to constitutional structure and minimize the disruptive effects of its decisions

Considering Legitimacy

This Article on Richard Fallon’s Law and Legitimacy in the Supreme Court focuses on public acceptance of the Supreme Court’s authority, what Fallon calls sociological legitimacy. After setting out Fallon’s accounts of legitimacy and constitutional argumentation, the Article looks at public opinion data and political science scholarship on the extent to which the Court’s decisions affect public acceptance of the Court. It then turns to the normative question of whether, even if the Court’s decisions may undermine its sociological legitimacy, that impact is a legally legitimate factor for the Court to consider. The Article argues that strategic consideration of the Court’s public legitimacy can be an appropriate factor in the Justices’ decision making, but such consideration may end up actually harming the Court’s reputation if undertaken openly and candidly as Fallon would seem to require

Constitutionalizing Systemic Administration

Will the national administrative state as we know it survive? That question has risen to the fore with the advent of the Trump presidency. The President’s chief strategist has proclaimed “deconstructing the administrative state” to be one of the main pillars of the Trump Administration. Philip Rucker & Robert Costa, Bannon Vows a Daily Fight for ‘Deconstruction of the Administrative State,’ WASH. POST (Feb. 23, 2017). Early Trump actions have been notably anti-regulatory, including requirements that agencies repeal two regulations for each new regulation they propose, keep additional regulatory costs at zero, and plan for reorganization