A Trump administration is unlikely to be supportive of three of the four recommendations relating to adjudication in the Report to the President-Elect by the ABA Section on Administrative Law and Regulatory Practice. Considering these recommendations (though not in the order they were presented in the ABA’s letter): 1) The Ad Law Section urged the […]
I am also pleased to contribute to this symposium on the Section of Administrative Law and Regulatory Practice’s 2016 Report to the President-Elect. My assignment? Regulatory cooperation between the United States and other countries. I strongly support such cooperation — well, at least most of the time. To begin, this is what the Report has […]
Among the ABA AdLaw Section’s recommendations in its bi-partisan Report to the President-Elect sent to both candidates before the election was this one concerning OIRA’s administration of Executive Order 12,866: Third, we urge you to ensure appropriate transparency in White House oversight of agency rulemaking through OIRA. From their beginning, the Executive orders creating a […]
Over the next week or so, we will be hosting an online symposium on the 2016 Report to the President-Elect on Improving the Administrative Process, which was released by the ABA Section on Administrative Law and Regulatory Practice ahead of this year’s presidential election. The symposium will feature posts from a wide diversity of administrative […]
I am delighted to contribute to this symposium on the 2016 Report to the President-Elect that the American Bar Association’s Section of Administrative Law and Regulatory Practice issued shortly before the presidential election. As Emily Bremer noted in her symposium introduction earlier today, a number of administrative law scholars and experts will be doing short […]
In thinking about the future of Auer deference, I begin with a critical supposition, that stare decisis will prevail and the Court will not overturn Auer, at least not based on separation of powers principles.* Retaining Auer, however, does not mean that its doctrine will remain static. Drawing especially but not exclusively from Christopher v. […]
I planned to post solely about how judicial review would operate without Auer deference. I recently ruminated in a forthcoming Missouri Law Review symposium paper about a future without Chevron, and I think post-Auer and post-Chevron futures offer interestingly different implications. But along the way I found myself thinking about the origins of Auer deference. […]
Our symposium on Seminole Rock deference has now come to an end. I will take a few moments, however, to thank all of the participants. By my count, 30 different contributors posted as part of this symposium. We are fortunate that so many folks, with so many different perspectives, were willing to take the time […]
“[I]t is emphatically the province and duty of the Judicial Department to say what the law is.” These simple, straightforward words constitute Chief Justice John Marshall’s foundational definition in Marbury v. Madison of “the judicial Power” that the Constitution vests in the federal courts. Repeated in countless court decisions, law review articles, and civics textbooks, […]
The Separation of Powers Restoration Act, or more easily known as SOPRA, is not a complicated bill. If enacted, it would amend the Administrative Procedure Act to require courts to decide de novo all questions of law, whether constitutional, statutory, or regulatory. As the House Report makes abundantly clear, the intent is to overrule statutorily […]
To some, Auer deference stands apart from the rest of administrative law. On the one hand, Auer is distinguished from other forms of deference as uniquely constitutionally problematic, because it grants agencies deference for their own interpretations of their own regulations. This, according to Justice Scalia (accepting an argument raised by his former law clerk, […]
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 […]
Predictions are hard, especially about the future. It’s much safer to hide behind a broad trend: There was a time, just a couple of years ago, when it seemed like Auer and Seminole Rock were not long for this world. Auer’s author, Justice Scalia, turned his back on the doctrine. The tide of scholarly opinion—led […]
It’s no secret that some people have misgivings about the administrative state—including, most notably, the Chief Justice of the United States. In fact, Chief Justice Roberts believes that the administrative state—with its “‘vast and varied federal bureaucracy’”—presents a “danger” that “cannot be dismissed.” Although “it would be a bit much” to condemn today’s regulatory scheme […]
There is no question that there are both weighty constitutional concerns and practical problems with the Seminole Rock doctrine that impede the achievement of consistency, fairness and transparency in our modern administrative state. These concerns coupled with the confusion and inconsistencies in the lower courts when they attempt to apply Seminole Rock’s “plainly erroneous or […]