Overseeing Agency Enforcement: A Foreword to the Annual Review of Administrative Law

Rachel E. Barkow · 84 Geo. Wash. L. Rev. 1129 · A big part of what agencies do—indeed, the core of their executive power—is law enforcement. Whether it is a statute or an agency regulation, agencies make sure that individuals and entities comply with the law. In the case of some agencies, such...
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Chevron Bias

Philip Hamburger · 84 Geo. Wash. L. Rev. 1187 · This Article takes a fresh approach to Chevron deference. Chevron requires judges to defer to agency interpretations of statutes and justifies this on a theory of statutory authorization for agencies. This Article, however, points to a pair of constitutional questions about the...
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Preambles as Guidance

Kevin M. Stack · 84 Geo. Wash. L. Rev. 1252 · Debates over administrative agencies’ reliance on guidance documents have largely neglected the most authoritative source of guidance about the meaning of agency regulations: their preambles. This Article examines and defends the guidance function of preambles. Preambles were designed not only to...
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The Future of Deference

Richard J. Pierce, Jr. · 84 Geo. Wash. L. Rev. 1293 · In this Essay, Professor Richard Pierce describes the history of the deference doctrines the Supreme Court has announced and applied to agency interpretations of ambiguous statutes and rules over the last seventy years. He predicts that the Court will continue...
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Revisiting the Public Rights Doctrine: Justice Thomas’s Application of Originalism to Administrative Law

Laura Ferguson · 84 Geo. Wash. L. Rev. 1315 · Administrative agencies today adjudicate vastly more disputes than do Article III courts. The constitutional underpinnings of the administrative agency’s adjudicative power remain somewhat murky, however, as does today’s conception of which cases administrative agencies can appropriately adjudicate. The Supreme Court has said...
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The American Bar Association Section of Administrative Law and Regulatory Practice held their Administrative Law Conference of 2015 on October 29th and 30th at the Walter E Washington Convention Center. On the morning of October 29th, The George Washington University Law Review (Law Review) hosted one of the panels based on the journal’s Annual Review of Administrative Law titled “Chevron Bias, Preambles as Guidance, Oversight of Agency Enforcement Discretion, and Other Contemporary Issues”. The Law Review’s Senior Projects Editor, Maxwell Weiss organized the panel in conjunction with ABA Section. A summary of the panel appears below.

Observations from the GWLR Administrative Law Panel

            The American Bar Association Section of Administrative Law and Regulatory Practice held their annual Administrative Law Conference beginning on October 29, 2015.   The George Washington University Law Review (Law Review) hosted one of the opening breakout sessions, the journal’s Annual Review of Administrative Law. This year, the panel was...
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Historical Supplement

Prepared by David M. Pritzker, Deputy General Counsel of the Administrative Conference of the United States · Introduction · 83 Geo. Wash. L. Rev. 1705 · The Historical Supplement to this issue of the George Washington Law Review contains an overview of the history of the Administrative Conference of the United States, together...
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The Administrative Conference at Fifty: An Agency Lives Twice

Professor David C. Vladeck · 83 Geo. Wash. L. Rev. 1689 · This Article traces the successful resurrection of the Administrative Conference of the United States (“ACUS”), a federal agency uniquely dedicated to improving the efficiency and fairness of administrative agencies to better serve the American public. The Article begins by recounting...
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The Administrative Conference and the Political Thumb

Professor Peter L. Strauss · 83 Geo. Wash. L. Rev. 1668 · In his valuable contribution to this special issue, Richard Pierce underscores the role the Administrative Conference of the United States (“ACUS”) has played over the years in encouraging on-theground fact-finding by its consultants, who have usually been academics consulted at...
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ACUS and Suits Against Government

Professor Jonathan R. Siegel · 83 Geo. Wash. L. Rev. 1642 · The Administrative Conference of the United States (“ACUS”) has played an important role in improving the system of lawsuits against the federal government. ACUS should continue to play this role, for which it is uniquely well suited. Because it does...
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States vs. FDA

Professor Catherine M. Sharkey · 83 Geo. Wash. L. Rev. 1609 · In the United States, food and drug safety is regulated in two ways: a stringent ex ante, national regime led by the Food and Drug Administration (“FDA”) and a robust ex post system of state-law enforcement. This federalist structure of...
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A Government Success Story: How Data Analysis by the Social Security Appeals Council (with a Push from the Administrative Conference of the United States) is transforming Social Security Disability Adjudication

Administrative Appeals Judge Gerald K. Ray and Professor Jeffery S. Lubbers · 83 Geo. Wash. L. Rev. 1575 · This Article for the special issue on the Administrative Conference of the United States (“ACUS”) focuses on how a collaboration between ACUS and the Social Security Administration (“SSA”) has helped SSA use data...
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The Administrative Conference and Empirical Research

Professor Richard J. Pierce, Jr. · 83 Geo. Wash. L. Rev. 1564 · This article describes the ways in which ACUS has encouraged scholars to engage in empirical research and some of the results of those efforts. It then discusses the many important characteristics of the notice and comment rulemaking process and...
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The Administrative Conference of the United States and Its Work on the Freedom of Information Act: A Look Back and a Look Forward

Dean Alan B. Morrison · 83 Geo. Wash. L. Rev. 1540 · The Administrative Conference of the United States (“ACUS”) celebrated its fiftieth anniversary in 2014 (disregarding a fifteen-year period of congressionally induced hibernation), and the Freedom of Information Act (“FOIA”) will celebrate a similar milestone either in 2016, fifty years after...
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Political Control and the Forms of Agency Independence

Professors David E. Lewis and Jennifer L. Selin · 83 Geo. Wash. L. Rev. 1487 · The legitimacy of the federal executive establishment’s administrative policies hinges on the ability of democratically elected officials to hold federal agencies accountable. While both the President and Congress have a variety of tools they can employ...
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The REINS Act: Unbridled Impediment to Regulation

Professor Ronald M. Levin · 83 Geo. Wash. L. Rev. 1446 · The Regulations from the Executive In Need of Scrutiny Act (“REINS Act”) is a legislative proposal that would greatly increase congressional control over administrative agency rulemaking. Under the bill, no “major rule” (a rule with a large economic impact) could...
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James Landis and the Dilemmas of Administrative Government

Associate Justice Mariano-Florentino Cuéllar · 83 Geo. Wash. L. Rev. 1330 · In the late 1930s, the administrative state was becoming an increasingly important component of American national government as the country recovered from the Depression and emerged as a preeminent geopolitical power. Amidst these changes, James Landis had a distinctive perspective...
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Public Participation and the Transatlantic Trade and Investment Partnership

Research Chief Reeve T. Bull · 83 Geo. Wash. L. Rev. 1262 · In the last several years, regulators in major industrialized states have increasingly focused on achieving greater integration between international regulatory regimes and eliminating unnecessary regulatory divergences that create barriers to trade. So-called international regulatory cooperation, which the Administrative Conference...
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ACUS—And Administrative Law—Then and Now

Professor Michael Herz · 83 Geo. Wash. L. Rev. 1217 · The Administrative Conference of the United States (“ACUS”) both shapes and reflects the intellectual, policy, and practical concerns of the field of administrative law. Its recommendations are therefore a useful lens through which to view that field. Also, because of an...
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Reflections on the Administrative Conference

Justice Antonin Scalia and Justice Stephen G. Breyer · 83 Geo. Wash. L. Rev. 1205 · Testimony Before Subcommittee on Commercial and Administrative Law of the House Committee (2010). Just over five years ago we testified together before a subcommittee of the House of Representatives’ Judiciary Committee to comment on the Administrative...
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The Administrative Conference and the Federal Judiciary

Executive Director Matthew Lee Wiener · 83 Geo. Wash. L. Rev. 1142 · Introduction to Panel entitled The Administrative Conference of the United States: The View from the Federal Bench What follows is a transcript of a discussion moderated by Chairman of the Administrative Conference of the United States (“ACUS” or “Conference”)...
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ACUS 2.0: Present at the Recreation

Chairman Paul R. Verkuil · 83 Geo. Wash. L. Rev. 1133 · By a variety of circumstances and some good fortune, I seem to have been connected to the Administrative Conference of the United States for much of its fifty-year life. This has given me a distinctive perspective on the Conference’s value,...
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Rethinking Auer Deference: Agency Regulations and Due Process Notice

Derek A. Woodman · October 2014 82 GEO. WASH. L. REV. 1721 (2014) Since 1945, the Supreme Court has struggled to determine the level of deference that is due to an agency’s interpretation of regulations that the agency promulgates. For decades, and with little discussion, the Supreme Court has given an agency interpretation controlling weight. Concerned with the power of administrative agencies, the Supreme Court appears ready to re-examine its deference jurisprudence. This Essay suggests that the Court has repeatedly focused throughout its opinions on the notice provided by an agency interpretation of a regulation. Relying in part on the recent resurgence of the due-process-notice doctrine, this Essay argues that courts should explicitly recognize the due-process-notice principles that underlie the Auer deference analysis and incorporate those principles when considering whether an agency’s regulatory interpretation receives controlling deference. These notice principles provide a coherent rationale and structure for the otherwise disjointed Auer deference doctrine. Furthermore, placing due-process-notice limits on Auer deference ensures that regulated parties are fully aware of the burdens that an agency imposes on them and prevents agencies from abusing their power to regulate.

Changing the D.C. Circuit’s Approach to Changes in Interpretive Rules

Rebecca Wernicke · October 2014 82 GEO. WASH. L. REV. 1699 (2014) In Mortgage Bankers Ass’n v. Harris, the D.C. Circuit applied a disfa- vored doctrine for the first time in fourteen years to invalidate an agency’s change to an interpretive rule, holding that the agency needed to undertake notice-and-comment rulemaking in order to make the change. The doctrine the court applied, commonly referred to as the Alaska Hunters doctrine, requires that agencies use notice-and-comment rulemaking each time they seek to change a definitive interpretive rule. This doctrine has been widely criticized by scholars, who have called it “a mistake” and “a procedural straight-jacket” because it creates procedural requirements for agency informal rulemaking not required by the Administrative Procedure Act. For a time, it was avoided by the D.C. Circuit, which regularly narrowed or ignored the doctrine. In Mortgage Bankers, however, the court arguably revived and expanded the doctrine by making it applicable even in cases where no reliance on the initial interpretive rule is shown. This eliminated the best policy for the Alaska Hunters doctrine and made it more widely applicable. This Essay argues that the best way to address the problem of changes in an agency’s interpretive rules is not...
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Requiring Meaning for the Affordable Care Act’s Prohibition on Annual Limits

Matthew Thrasher · October 2014 82 GEO. WASH. L. REV. 1674 (2014) The Patient Protection and Affordable Care Act, commonly known as “Obamacare,” includes a provision that prohibits insurers from setting annual or lifetime limits to the “dollar value” of coverage for essential health benefits. This element of the law was meant to protect patients with chronic or catastrophic conditions from facing bankruptcy despite having—seemingly—robust health insurance. Notwithstanding this provision, the agencies responsible for implementing the law have informally stated that insurers may convert the statutorily prohibited dollar caps into frequency or duration limitations on benefits. These new forms of benefit limits have the potential to be worse for those with chronic conditions than the simpler dollar caps, and will distort the market in perverse ways. Additionally, these new limits are contrary to the statutory language and purpose. This Essay challenges the agencies’ guidance on this issue as an improper interpretation of the statute, and furthermore, bad policy. Part I explains the law’s provision on annual and lifetime limits and then describes the current implementation of these provi- sions. Part II describes the negative real-world effects this implementation is having on those beneficiaries whom the law was meant to help. Part III...
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Science in the Modern Administrative State: Examining Peer Review Panels and the Federal Advisory Committee Act

Gregory Morrison · October 2014 82 GEO. WASH. L. REV. 1654 (2014) The use of science is integral to the modern administrative state. Scientific studies conducted by government agencies ought to be subject to peer review by external experts. The government’s current use of such outside experts, however, is subject to many constraints—notably the Federal Advisory Committee Act (“FACA”) and Executive Order (“E.O.”) 12,838, issued by President Bill Clinton. This Essay first considers what requirements FACA and the subsequent Executive orders bearing on federal advisory committees impose and what those elements of law mean for the use of external panels of peer reviewers. Next, the Essay outlines the important roles science and peer review play in the formulation of government policy and regulations, with specific reference to the peer review practices of the U.S. Forest Service. Finally, this Essay proposes an Executive order and amendments to FACA, which would exempt peer review panels from the most burdensome restrictions im- posed by FACA and E.O. 12,838.

Presidential Influence Over Agency Rulemaking Through Regulatory Review

Peter Ketcham-Colwill · October 2014 82 GEO. WASH. L. REV. 1622 (2014) Under Executive Order 12,866, the Office of Information and Regulatory Affairs (“OIRA”) is responsible for ensuring that regulatory actions taken by federal agencies are consistent with the President’s priorities and do not conflict with the policies or actions of another agency. Although issued by the Clinton Administration in part to address concerns with executive interference with agency decisionmaking, OIRA review remains characterized by indefinite delay of agency rules, a lack of transparency, and the absence of accountability in the review process. The current state of OIRA review raises serious questions about the proper scope of executive influence over decisions committed by law to the discretion of agency officials. This Essay argues that OIRA review as currently practiced fails to comply with Executive Order 12,866, results in violations of statutory deadlines, and undermines the openness in administrative policymaking codified by the Administrative Procedure Act. It further argues that the present form of OIRA review exceeds the President’s constitutional authority to influence agency action through the removal power by circumventing the structural limits on the use of this power, resulting in impermissible direction of agency decisionmaking. To address these issues, the Essay...
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The Ordinary Remand Rule and the Judicial Toolbox for Agency Dialogue

Christopher J. Walker · October 2014 82 GEO. WASH. L. REV. 1553 (2014) When a court concludes that an agency’s decision is erroneous, the ordi- nary rule is to remand to the agency to consider the issue anew (as opposed to the court deciding the issue itself). Although the Supreme Court first articulated this ordinary remand rule in the 1940s and has rearticulated it repeatedly over the years, little work has been done to understand how the rule works in practice, much less whether it promotes the separation of powers values that motivate the rule. This Article conducts such an investigation—focusing on judicial review of agency immigration adjudications and reviewing the more than 400 published court of appeals decisions that have addressed the remand rule since the Court rearticulated it in 2002. This Article finds that courts generally fail to appreciate the dual separation of powers values of Article I legislative and Article II executive authority at issue and that some circuits have not been faithful to this command. Courts that refuse to remand seem to do so when they believe the petitioner is entitled to relief and remand would unduly delay or, worse, preclude relief because the petitioner would get lost...
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Administrative War

Mariano-Florentino Cuéllar · October 2014 82 GEO. WASH. L. REV. 1343 (2014) This Article takes up an issue with major implications for American administrative law, political development, and security studies: what happened to the American administrative state during and immediately after World War II, and what were the consequences of this period? As the Roosevelt Administration rushed to align domestic affairs with American geostrategic priorities at the outset of World War II, it confronted a host of now largely forgotten legal and organizational challenges. These ranged from a federal income tax base that encompassed less than ten percent of the labor force to unresolved legal questions about the scope of agencies’ power to issue subpoenas. For policymakers, organized interests, and the public, these challenges created uncertainty about the success of mobilization and the scale of the changes that the Administration would pursue. In response, the Administration and its legislative supporters made strategic choices to expand the administrative state without pursuing direct public control of industry. They created agencies such as the War Production Board, the Office of Price Administration, and the Office of Economic Stabilization. Within a few years, these organizations became part of a broader structure for legally sanctioned agency action that...
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Chevron and Legislative History

John F. Manning · October 2014 82 GEO. WASH. L. REV. 1517 (2014) The Court’s decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. presupposes that when Congress leaves indeterminacy in an organic act, that indeterminacy reflects an implicit delegation of power to the agency to fill in the details of statutory meaning. Accordingly, a reviewing court must accept the agency’s interpretation if reasonable. At its threshold, the Chevron test requires the reviewing court to use the “traditional tools of statutory construction” to determine if Congress expressed a clear intention concerning the interpretive question or, by virtue of indeterminacy, left the question for agency resolution. In the era in which it decided Chevron, the Court felt free to use legislative history to help determine whether Congress had directly spoken to the question at issue in the case. In the years since Chevron, the Court’s understanding of the “traditional tools” of statutory interpretation has changed. Contrary to its practice at the time of Chevron, the Court has made it flatly impermissible for interpreters to rely on legislative history in a way that contradicts the text of the statute. This Article argues that the Court’s new approach to legislative history precludes the...
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Why Who Does What Matters: Governmental Design and Agency Performance

David A. Hyman & William E. Kovacic · October 2014 82 GEO. WASH. L. REV. 1446 (2014) How should the federal government be organized—and who (i.e., which departments, agencies, bureaus, and commissions) should do what? The issue is not new: President James Madison addressed governmental organization in his 1812 State of the Union Address, and, in the last century, it is the rare President that does not propose to reorganize some part of the federal government. On many occasions during the past century, nearly every part of the federal government has been repeatedly reorganized and reconfigured. In previous work, we have examined the dynamics that influence the assignment of regulatory duties to an agency, how those dynamics (and the allocation of responsibilities) can change over time, and how the specific combination of regulatory functions and purposes affects agency decision making. We apply the framework developed in previous work to examine the costs and benefits of the design choices made by the architects of the Consumer Financial Protection Bureau, and make some (appropriately hedged) predictions about the future prospects of this recent addition to the federal bureaucracy. We also briefly consider the implications of our analysis for the implementation of the Patient Protection...
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