Administrative Law Professors’ Amicus Brief in United States v. Texas

by Christopher J. Walker — Saturday, Mar. 12, 2016@chris_j_walker

Earlier this week my co-blogger Michael Kagan had a great post on the Federal Government’s opening brief in United States v. Texas—the Supreme Court case regarding the Obama Administration’s executive actions on immigration that will be argued in April.

I wanted to highlight one of the amicus briefs in support of the United States by the “who’s who” of administrative law scholars—Dan Farber, Michael Herz, Ron Levin, Jerry Mashaw, Nina Mendelson, Gillian Metzger, Anne O’Connell, Dick Pierce, Susan Rose-Ackerman, Kevin Stack, Peter Strauss, and Adrian Vermeule. This brief is a rich and fascinating read, in which they argue that the DAPA memorandum is a general statement of policy and thus not subject to notice-and-comment rulemaking.

My favorite part of the brief focuses on the need for higher-level agency officials to be able to bind street-level officers within the agency. Here’s a taste of their argument (at 4):

As amici and other administrative law scholars have explained, it is critical for agency heads to be able to bind lower-level agency employees to ensure that the agency’s policies are reliably carried out. See, e.g., Gillian E. Metzger, The Constitutional Duty To Supervise, 124 Yale L.J. 1836 (2015); 3 Richard J. Pierce, Jr., Administrative Law Treatise § 17.3 (5th ed. 2010) (“Pierce”); Peter L. Strauss, Publication Rules in the Rulemaking Spectrum: Assuring Proper Respect for an Essential Element, 53 Admin. L. Rev. 803 (2001). Requiring notice and comment every time an agency head promulgates binding internal guidance would fundamentally impair agency heads’ ability to direct the agencies they are statutorily charged with overseeing. Discretion at the level of the agency head, not discretion by lower-level staff, is therefore the essential factor.

Definitely go give the brief a full read here .


Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Christopher J. Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the California Law Review, Michigan Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and as Chair-Elect of the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

One thought on “Administrative Law Professors’ Amicus Brief in United States v. Texas

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