Greve & Parrish on Administrative Law Without Congress (AdLaw Bridge Series)

by Christopher J. Walker — Thursday, Nov. 13, 2014@chris_j_walker

Now that both chambers of Congress are controlled by one party and the presidency by the other, it seems fitting to highlight in the AdLaw Bridge Series this week a terrific paper by Michael Greve and Ashley Parrish entitled “Administrative Law Without Congress: Of Rewrites, Shell Games, and Big Waivers .”  The article will be published in the George Mason Law Review , and a draft is available on SSRN here .

Professor Greve has a great summary of the paper over at the Library of Law and Liberty Blog :

Administrative Law—both in its New Deal and its modern, post-Chevron version—rests on legislative supremacy.  In other words, it assumes that there’s a halfway functional Congress.  What if there isn’t?  What happens when Congress fails to update ancient statutes and, when legislating at all, enacts convoluted statutes (such as Dodd-Frank or the ACA) that no one can make sense of?  What if everyone starts taking it for granted that Congress is hopeless?
. . . What happens when Congress goes AWOL, we explain, is that agencies start playing games at the outer limits of the law, and often beyond those limits. They unilaterally re-write their organic statutes.  They play procedural shell games.  And they start waiving regulatory requirements for folks they like, while hitting disfavored industries with a ton of bricks.
What happens next, we further explain, is that AdLaw doctrines we all thought we knew start to bend.  Those doctrines aren’t all that constraining to begin with.  They weaken further when the ordinary and obvious judicial response to agency overreach—“you need congressional authority for that”—seems absurdish.
The full-length article shows that rewrites, shell games, and waivers happen a lot—in environmental law, energy law, financial regulation, health care, and pharmaceutical regulation.  Depressing reading.  But if we want to be serious about legal doctrines for the administrative state, we should start with a realistic appraisal.
While it’s commonplace in political discourse to blame Congress for a lot of problems in modern governance, too little attention has been paid to how Congress can reign in the administrative state.  And how congressional failure on that front weakens the administrative law judicial review doctrines has been even less explored.  That’s what makes this article such a refreshing (and timely) read.
Moreover, we are not just talking about enacting legislation — something that would require presidential approval or a congressional supermajority to take effect.  Congress does not need to enact legislation to affect agency behavior.  As I explore briefly elsewhere (see Part II.B.3), congressional oversight committees can apply pressure, committee hearings can be held, the Government Accountability Office (Congress’s investigative arm) can probe and issue reports, and members of Congress can request an investigation by the agency’s inspector general—just to name a few alternative means of congressional influence.

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

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.

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