On Dollars and Deference: Agencies, Spending, and Economic Rights

Agencies can change society not just by prescribing conduct, but also by spending money. The Obama administration gave us two powerful examples of this phenomenon. To secure widespread access to affordable health insurance and affordable higher education, the administration took actions that were not required by statutory text. These entitlements are built upon a scaffolding of aggressive agency statutory interpretations, not upon clear legislative commands. This Article uses these two examples as case studies for evaluating the institutional competence of the executive branch to underwrite large-scale positive economic entitlements on the basis of ambiguous statutory authority. Such agency-initiated schemes may help improve the economic wellbeing and enhance the economic opportunity of millions of Americans. But, as these case studies reflect, the risks of such agency action are considerable. First, when the executive branch gives money away, Article III standing requirements will weaken the check of judicial review on administrative action. Second, agency creation of schemes for protecting economic entitlements may result in political and even legal entrenchment that could complicate or obstruct future lawmakers’ ability to undo those agency decisions. Third, the initiation of broad-scale government spending programs entails society-wide redistributive trade-offs that neither individual agencies, nor the executive branch as a whole, can properly make. In sum, this form of executive-branch action may advance important interests—interests in health, education, and economic equality and opportunity. But it may also corrode values that are at least equally important—most notably, the power of Congress to control the current and future financial obligations of the United States

On Dollars and Deference: Agencies, Spending, and Economic Rights

Agencies can change society not just by prescribing conduct, but also by spending money. The Obama administration gave us two powerful examples of this phenomenon. To secure widespread access to affordable health insurance and affordable higher education, the administration took actions that were not required by statutory text. These entitlements are built upon a scaffolding of aggressive agency statutory interpretations, not upon clear legislative commands. This Article uses these two examples as case studies for evaluating the institutional competence of the executive branch to underwrite large-scale positive economic entitlements on the basis of ambiguous statutory authority. Such agency-initiated schemes may help improve the economic wellbeing and enhance the economic opportunity of millions of Americans. But, as these case studies reflect, the risks of such agency action are considerable. First, when the executive branch gives money away, Article III standing requirements will weaken the check of judicial review on administrative action. Second, agency creation of schemes for protecting economic entitlements may result in political and even legal entrenchment that could complicate or obstruct future lawmakers’ ability to undo those agency decisions. Third, the initiation of broad-scale government spending programs entails society-wide redistributive trade-offs that neither individual agencies, nor the executive branch as a whole, can properly make. In sum, this form of executive-branch action may advance important interests—interests in health, education, and economic equality and opportunity. But it may also corrode values that are at least equally important—most notably, the power of Congress to control the current and future financial obligations of the United States

Notice and the New Deal

The New Deal Supreme Court revised a well-known set of constitutional doctrines. Legal scholarship has principally focused on the changes that occurred in three areas—federalism, delegation, and economic liberty. This Article identifies a new and important fourth element of New Deal constitutionalism: a change in the constitutional doctrine of due process notice, the doctrine that specifies the minimum standards for constitutionally adequate notice of the law. The law of due process notice—which includes the doctrines of vagueness, retroactivity, and the rule of lenity—evolved dramatically over the course of the New Deal to permit lesser clarity and to tolerate more retroactivity. The upshot has been the near-total elimination of successful notice-based challenges other than in the limited context of First Amendment vagueness attacks. Unlike the more famous doctrinal changes of this period, changes to due process notice doctrine were not obviously necessary to accommodate the New Deal legislative agenda, either as a matter of jurisprudence or as a matter of politics. Due process notice doctrine nonetheless underwent a radical transformation in this era, as the Court came to regard its broader shift toward deferring to legislative and executive policy decisions as requiring the relaxation of due process notice doctrine. The link forged between deference and notice had significant functional effects on the most important audience for the Court\u27s notice jurisprudence—Congress. By loosening the strictures of due process notice doctrine, the Court lowered sharply the enactment costs of federal legislation and thereby facilitated its proliferation. This is a distinct, and hitherto unacknowledged, mechanism by which the Court in this period enhanced national power and encouraged the flourishing of the emerging administrative state. Like much of the New Deal settlement, the New Deal reformulation of due process notice doctrine is today the subject of ferment in the courts. Recognizing the New Deal roots of due process notice doctrine is critical for understanding these ongoing judicial debates—and for beginning the conceptual work of mapping the future shape of this vital cluster of doctrines

The Puzzle of Procedural Originalism

On a daily basis, lawyers and judges consult and apply the rules of subject matter jurisdiction and personal jurisdiction. These doctrines—the workhorses of procedural law—ostensibly spring from the Constitution’s text, but their substance owes more to considerations of fairness, efficiency, and sound policy than it does to original meaning. Indeed, these doctrines are among the most openly and obviously nonoriginalist doctrines in constitutional law. Curiously, the originalist movement has almost totally ignored this everyday terrain. That is beginning to change. Recent overtures by Supreme Court Justices suggest that originalists are now poised to advance into the field of civil procedure. Reorienting extant procedural doctrine around the polestar of original meaning could have dramatic effects: for example, it could oust corporations and D.C. citizens from suing or being sued in diversity while throwing into disarray the doctrines that govern the vast set of suits in which state and federal courts exercise personal jurisdiction over out-of-state defendants. In these and other respects, an originalist turn in procedure may have momentous consequences for our law. This Article examines this emergent phenomenon of “procedural originalism”—its past, its present, and its prospects. It describes the intellectual backstory of originalism’s engagement with civil procedure and remedies and the fresh uptick of attention to the originalist underpinnings of various procedural and remedial doctrines. It surveys the discrepancies between original public meaning and bread-and-butter staples of civil procedural doctrine while showing how civil procedural doctrine has drawn its substance from considerations beyond mere original meaning. And it sketches the challenging questions that procedural originalism poses for some of the many theories of originalism. Above all, however, this Article explores what originalism’s late arrival to the domain of civil procedure reveals about the construction of the originalist agenda. A prominent charge levied against originalism is the claim that originalism is not an apolitical legal interpretive methodology but rather a tool for selectively inscribing into constitutional law the political goals of the conservative legal movement. What is striking about civil procedure is that an originalist remodeling of procedural law would call for some outcomes that are nonaligned with, or even sharply adverse to, the aims of key conservative movement constituencies. The future course of procedural originalism therefore promises to throw light on the contours of originalism’s constitutional politics and, ultimately, will offer a new test of the charge that originalism is a proxy for politics rather than a theory of law

The Administrative Constitution in Exile

For decades, the aspiration of administrative law has been to develop legal structures that would constrain and legitimate the exercise of agency power. The fruition of that hope was the complex internal blueprint that has made modern administrative governance both successful and legitimate the framework for executive action that many have hailed as the administrative constitution. Today, however, novel exercises of administrative power are crowding out old and familiar varieties, making the conventional forms of administrative action less and less relevant to the conduct of government. This Article examines how the administrative constitution has changed over time and how that transformation can be better understood by reference to constitutional theory. Administrative law today confronts a conceptual choice similar to that faced by constitutional law in the wake of the New Deal: whether to treat fundamental constitutional change as exile or as evolution. When faced with that choice, living constitutionalists did not simply declare by fiat that the Constitution was living. Instead, they justified that assessment by explaining how democratically legitimate constitutional change occurs as a result of an entire system of constitutional construction working in concert a system that includes courts, political parties, citizens, and social movements. The problem for administrative law is that it lacks such an account of legitimate administrative constitutional evolution. The legal, political, and social mechanisms that ensure that the living Constitution is simultaneously robust, adaptable, and democratically legitimate apply much more weakly to the dynamics responsible for administrative constitutional change. Administrative law thus faces a daunting challenge: to ensure that administrative constitutional change itself occurs in a constrained and legitimate fashion. If that challenge is not met, we run the risk that we will be governed not by a robust and administrative constitution, but by an administrative constitution in exile

Agency Adjudication and Judicial Nondelegation: An Article III Canon

The rules governing judicial review of adjudication by federal agencies are insensitive to a critical separation of powers principle. Article III jurisprudence requires different treatment of agency adjudication depending on whether the agency is adjudicating a “private right” or a “public right.” When agencies adjudicate private rights, review of the agency adjudication must be available to an Article III court on a direct appellate basis. In contrast, Article III jurisprudence does not require review to an Article III court on a direct appellate basis of agency adjudications of purely public rights. That means that federal courts reviewing agency adjudications of private rights have a greater responsibility for vindicating Article III values than federal courts reviewing public rights adjudications. Administrative law’s deference doctrines do not reflect this distinction. The degree of deference courts owe to agencies does not vary depending on whether adjudication involves “public” or “private” rights, in the Article III sense of those terms. In either case, Article III courts review agency adjudication deferentially. This Article challenges that indifference. Courts should calibrate their degree of deference in accordance with the Article III line and apply more robust review to agency adjudication where private rights are at stake. This approach would vindicate separation of powers values, promote better administrative decisionmaking in private rights cases, and dovetail with entrenched doctrines of constitutional and administrative law. Interestingly, the logic of Article III elaborated here suggests one explanation for why some federal courts, in certain cases implicating quasi-private rights, are declining to defer to agency adjudications in a manner recognized to be inconsistent with the demands of ordinary administrative law

King\u27s Domain

In King v. Burwell, the Supreme Court called the tax-credit provision of the Affordable Care Act ambiguous—but then invoked the major questions exception to Chevron deference and proceeded to resolve the provision’s meaning for itself. Litigants and commentators quickly recognized that King had the potential to destabilize Chevron. If King exempts from Chevron deference anything that is “major,” then Chevron’s significance will necessarily be diminished, as agencies will only enjoy deference on their answers to questions of “minor” import; the major questions exception may swallow Chevron’s rule. This Essay, prepared for a symposium held by the Notre Dame Law Review, traces King’s domain and shows how it leaves untouched much of Chevron’s domain. King was correctly decided in the particular context in which it arose—the context in which an agency was interpreting an ambiguous statute to authorize broad-scale spending by the federal government. De novo review in this domain finds support in cases both old and new; it accords with constitutional values; and it need not spill over to other types of administrative law disputes. Courts can thus comfortably give King its due force within the domain it addressed. By the same token, however, courts should refrain from applying King beyond that domain, to block judicial deference to regulatory agency action that does not involve the generation of large amounts of federal spending. King and Chevron currently seem at war, but they can exist in detente. The federal courts should preserve this detente as Congress deliberates on the questions of fundamental regulatory reform currently pending before it