D.C. Circuit Review – Reviewed: The Future of Administrative Law?

by Aaron Nielson — Friday, Sept. 11, 2015@Aaron_L_Nielson

D.C. Circuit Review – Reviewed is designed to help you keep track of the nation’s “second most important court.” Think Relist Watch, but for D.C. Circuit opinions. In just five minutes a week, you too can follow this court. Alas, the D.C. Circuit did not issue any opinions this week. So, this week only, feel free to spend five minutes doing something else. (Here’s a suggestion.)

But for those of you who need your weekly “admin law” fix, I’m going to take a moment to talk about the administrative state. The big news of the week, of course, is Judge Collyer’s decision to let the House of Representatives’ lawsuit* proceed against the Department of Health and Human Services. I’ll let others hash out the merits of the court’s opinion. Instead, what I want to talk about is the future of administrative law.

This lawsuit (and others like it) is an example of “administrative law as blood sport.” I’ve talked about this before. Often, today’s arena for policy is the administrative state. Rather than working through Congress (which often doesn’t want to cooperate), the Executive Branch is engaged in “ever-greater boldness (evidence the numerous claims of executive overreach that have attracted the attention of the Supreme Court).” In an era where presidents use agencies to achieve high-priority policies, you can expect those who oppose those policies to attack the agencies. This is why the D.C. Circuit is so important; it is the battleground for these fights. (Though, to be sure, the Supreme Court is paying close attention too; even Justice Scalia — of all people — may be beginning to have second thoughts about Chevron.)

In my most recent article — published this week in the Georgia Law Review (download it here) — I sketch a possible future of administrative law. I’m not going to spell out the details of it here; this is just a blog post. But it seems to me that the more pressure is put on administrative law’s balance between discretion and constraint, the more likely it is that big changes will occur. That’s how it happened in the past. The central question in administrative law has always been how much discretion to entrust in agencies. It follows that the more discretion is used for controversial things, the more controversial discretion becomes.

So what happens next in the great struggle for the heart of administrative law? We’ll see. But read D.C. Circuit Review – Reviewed to witness it in real time.

* Note, some reports call it a “Republican lawsuit.” But this case is much more interesting than that. The House of Representatives, in an official act, passed a resolution authorizing the suit. To be sure, it was only Republican members of Congress who voted for it. But that is irrelevant for constitutional purposes. What matters is that this is a lawsuit brought by the House of Representatives against a federal agency in district court; in other words, this is Article I v. Article II in an Article III court. Those are high stakes.

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

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