Author Archives: Adam White

The Structure of Regulatory Revolutions

by Adam White — Tuesday, Mar. 14, 2017

Today the most important book in administrative law is one that was written a half-century ago—but not by Kenneth Culp Davis, or Walter Gellhorn, or James Landis, or the other legends of administrative law. The author was a scientist, Thomas S. Kuhn, and the book is The Structure of Scientific Revolutions. Everyone interested in administrative […]

The D.C. Circuit’s “Trump Card” for Executive Orders

by Adam White — Monday, Mar. 13, 2017

As countless commentators have observed, President Trump’s first months in office have been marked by the issuance of significant executive orders and other executive actions aimed at undoing or reforming the work of his predecessor, and charting a new policy course forward. In that respect, Trump was not a break from recent experience, but a continuation […]

Retrospective Review, for Tomorrow’s Sake

by Adam White — Monday, Nov. 28, 2016

In the ABA Administrative Law Section’s Report to the President-Elect, one finds a rather familiar recommendation: that the agencies undertake “careful, in-depth retrospective review of existing rules.” I call this a “familiar” recommendation, because President-elect Trump’s predecessor called for such a retrospective review in his own Administration. In early 2011, after the mid-term elections, President Obama […]

More on Justice Scalia’s Doubts About Chevron

by Adam White — Thursday, Nov. 17, 2016

After Justice Scalia’s passing (and even before it), word began to bubble up that he had been seriously rethinking Chevron, given his increasing doubts that the framework was tenable and productive. In the absence of a published opinion, it’s mainly been just the stuff of gossip—although gossip from sufficiently credible sources that I’ve felt confident mentioning it on this […]

Why the Supreme Court Might Overrule Seminole Rock

by Adam White — Wednesday, Sept. 21, 2016

In 1951, when Kenneth Culp Davis published his first comprehensive study of administrative law under the newly enacted APA, he explained that the deference courts give interpretative rules necessarily depends on a range of factors, from “the relative skills of administrators and judges in handling the particular subject matter” to “the extent of judicial confidence […]

Analyzing oral arguments in United States v. Texas

by Adam White — Tuesday, Apr. 19, 2016

Wednesday, April 20, 2016 | 4:00 PM – 5:00 PM Eastern | Teleconference Today the Supreme Court heard oral argument in United States v. Texas, one of the year’s most closely watched cases on constitutional and administrative law. The State of Texas and other plaintiffs challenge the Department of Homeland Security’s guidance on enforcement of […]

The Fed Knows Prices, But the Founders Knew Real Values

by Adam White — Thursday, Apr. 7, 2016

Peter Conti-Brown’s terrific study of the Federal Reserve arrives amid a small boomlet—I won’t say “bubble”—of new books on our central bank: Roger Lowenstein’s America’s Bank: The Epic Struggle to Create the Federal Reserve; former Chairman Bernanke’s memoir, The Courage to Act; similar memoirs by former Chairman Greenspan and former Treasury Secretary Geithner; Philip Wallach’s […]

Scalia and Chevron: Not Drawing Lines, But Resolving Tensions

by Adam White — Tuesday, Feb. 23, 2016

Among the many reasons for mourning Justice Scalia’s untimely passing (on which I’ve written at length elsewhere) is the fact that his death abruptly cut short his late-career reconsiderations of the administrative state. As Aaron Nielson observes, recent years had seen Justice Scalia expressing serious doubts about judicial deference to agency interpretations of their own […]

Defining Deference Down

by Adam White — Friday, June 26, 2015

CJW Note: Over at SCOTUSblog, there’s a great symposium on King v. Burwell. I thought I’d cross-post, with permission, one of the contributions, by Adam White, that relates to my post yesterday about the effect of King v. Burwell on administrative law. Here is Adam’s post: As many have by now noted, Chief Justice John Roberts asked only […]