Review of “Jurisdictional” Issues Under the Bumpers Amendment

The proposed Bumpers Amendment to the Administrative Procedure Act would encourage courts to be less deferential than they have previously been toward federal agencies\u27 views on issues of law. With regard to jurisdictional questions, the amendment would go further: it would invite courts not only to assert their independence, but also to disfavor agencies\u27 positions. Professor Levin regards this special rule of construction for jurisdictional questions as an attempt to achieve deregulation through judicial review. He criticizes this strategy as poorly conceived and calls attention to several weaknesses in the draftsmanship of the jurisdiction provision

Nonlegislative Rules and the Administrative Open Mind

The author\u27s main purpose here is to discuss the openmindedness that agencies are required to maintain towards the positions that they announce in nonlegislative rules. The author will offer a few observations about the circumstances in which this attitude is required, what agencies should do to maintain it, and how courts might police this obligation

The D.C. Circuit Undermines Direct Final Rulemaking

Twenty-five years ago, the Administrative Conference of the United States (ACUS) brought the technique of “direct final rulemaking” to the attention of the administrative law community. Since that time, agencies have used the technique thousands of times to adopt noncontroversial regulations on an expedited basis. But its legality depends on a creative reading of the Administrative Procedure Act (APA). A recent D.C. Circuit case, applying the APA in a manner that overlooked the distinctive features of this device, has exposed this vulnerability and may well have seriously undermined the viability of the practice. This column criticizes a case that came to my attention during deliberations of the ACUS Committee on Judicial Review

The APA and the Assault on Deference

Recently, in Kisor v. Wilkie, a concurring opinion by Justice Gorsuch argued at length that § 706 of the Administrative Procedure Act prohibits judicial deference to administrative interpretations of law. That section states that “the reviewing court shall decide all relevant questions of law.” This issue remained unresolved in Kisor, but the Supreme Court may well return to it soon as a potential argument against the validity of Chevron deference. Although a substantial academic literature has supported Gorsuch’s position on the APA question, this article disagrees with it. It argues that the text of § 706, surrounding statutory provisions, the legislative history, the case law background, and post-APA reactions all fail to support Justice Gorsuch’s thesis. To the contrary, a substantial tradition of deference antedated the Act, and Congress, not being particularly concerned about this issue, left that tradition undisturbed. The article concludes by arguing that Chevron deference, although not precisely foreseen when the APA was enacted, makes a reasonable extrapolation from that era’s doctrines and is consistent with § 706

Law & Leviathan: The Best Defense?

In their recent book Law & Leviathan, Cass Sunstein and Adrian Vermeule unveil a novel and provocative approach to legitimating the modern administrative state. Their starting point is a set of procedural principles that the legal philosopher Lon Fuller described as fundamental premises of the law’s “internal morality.

Crafting a Class: The Trade Off Between Merit Scholarships and Enrolling Lower-Income Students

[Excerpt] It is well-known that test scores are correlated with students’ socio-economic backgrounds. Hence to the extent that colleges are successful in “buying” higher test score students, one should expect that their enrollment of students from families in the lower tails of the family income distribution should decline. However, somewhat surprisingly, there have been no efforts to test if this is occurring. Our paper presents such a test. While institutional level data on the dollar amounts of merit scholarships offered by colleges and universities are not available, data are available on the number of National Merit Scholarship (henceforth NMS) winners attending an institution on scholarships that have been funded by the institution itself, rather than the National Merit Scholarship Corporation (henceforth NMSC). These institutional scholarships are awarded to high test score students only if they attend the institution. Our research strategy is to estimate if an increase in the number of recipients of these scholarships at an institution is associated with a decline in the number of students from lower and lower middle income families attending the institution, other factors held constant. We measure the number of these students by the number of Pell Grant recipients attending the institution

Crafting A Class: The Trade Off Between Merit Scholarships and Enrolling Lower-Income Students

Our paper uses institutional-level panel data to testwhether an increase in the number of institutionally funded National Merit Scholarship (NMS) winners at an institution isassociated with a reduction in the number of Pell Grant recipients at the institution. We find that, other factors held constant, an increase in the share of institutionally funded NMS winners in an institution's first-year class is associated with a reduction in the share of Pell Grant recipients among the institution's undergraduate student body and that the magnitude of this relationship is larges at the institutions that enroll the greatest number of NMS students.

Administrative Judges and Agency Policy Development: The Koch Way

Among the creative contributions that the late Charles H. Koch, Jr., made to administrative law thinking was his exploration of the present and potential role of administrative judges as policymakers. Charles stood in firm opposition to recent trends that, in his view, had served to strengthen the policymaking role of administrative judges at the expense of agency heads. He insisted that ultimate control over the policy direction of a program should rest with the officials who have been appointed to administer that program. While adhering to this baseline, however, Charles gravitated over time toward a nuanced view that sought to define an affirmative role for administrative judges in the policymaking process. He suggested, for example, that these judges could be helpful to agencies by initiating proposals for new directions and by building records that would enable agencies to appraise those proposals. In this sense, he argued, administrative judges could work in collaboration with, rather than at cross-purposes with, the agencies to which they are answerable. This memorial essay aims to review Charles’s analysis of this generally neglected topic and to contribute a few additional insights to the discussion. After examining the background issue of where ultimate policy control should rest, the essay describes and evaluates several of Charles’s ideas for refinement of the role of administrative judges as policymakers. In addition, the essay takes up related questions regarding agencies’ use of regulations and guidance documents to circumscribe the policy choices that administrative judges make

Vacatur, Nationwide Injunctions, and the Evolving APA

The courts’ growing use of universal or nationwide injunctions to invalidate agency rules that they find to be unlawful has given rise to concern that such injunctions circumvent dialogue among the circuits, promote forum shopping, and leave too much power in the hands of individual judges. Some scholars, joined by the Department of Justice, have argued that such judicial decisions should be limited through restrictive interpretations of the Administrative Procedure Act (APA). This Article takes issue with these authorities. It argues that the courts’ use of the APA to vacate a rule as a whole—as opposed to merely enjoining application of the rule to an individual plaintiff—serves vital functions in maintaining judicial control over agency discretion. The Article goes on to argue that such relief is consistent with the language and legislative background of the APA. However, courts have discretion as to whether they will make use of this remedy in individual cases. Starting from these premises, the Article surveys factors that can militate for or against universal relief in particular circumstances. It also suggests possible doctrinal adaptations and structural reforms that could contribute to preventing overuse of universal injunctions

The Regulatory Accountability Act and the Future of APA Revision

This article seeks to take stock of the Regulatory Accountability Act (RAA), a set of proposals to amend the Administrative Procedure Act (APA). House and Senate versions of the proposed Act have been pending in Congress since 2011, although the impending advent of Democratic control of the House may halt further progress on the bills in their present form. Some provisions in the RAA are desirable or at least supportable, because they would codify elements of current practice or make minor repairs to the APA. But other aspects of the bill are controversial and troubling. Among them are sections that would provide for (1) trial-type hearings on certain issues in proceedings to promulgate especially consequential rules; (2) mandatory findings and analyses in all notice-and-comment rulemakings; (3) judicially enforced requirements for cost-benefit analyses in major rulemakings; (4) curtailment of Auer deference; and (5) substantial evidence review of some major rules. The article examines some of the policy and drafting problems with these latter provisions. It concludes with some reflections on reasons why the RAA proponents headed in unproductive directions and how the process of APA revision could be improved in the future