Dear Friends,
This month’s newsletter arrives at an interesting moment — to say the least.
Just weeks ago, the Supreme Court began another year’s work. Last summer, the Court’s term ended with the usual flurry of closely-watched decisions, including its limitation of agency independence in Seila Law v. CFPB and its scrutiny of the Trump Administration’s rollback of the DACA immigration program in Department of Homeland Security v. Board of Regents of the University of California. In the year ahead, the justices will return to the agency independence question in Collins v. Mnuchin (this time involving the Federal Housing Finance Agency), and will hear a variety of other cases involving nationwide injunctions, FOIA requests, the Affordable Care Act, and much more.
To discuss the year ahead in the Court, the Gray Center hosted its annual Supreme Court Preview on October 23. This year’s event featured Jonathan Adler of the Case Western Reserve University, Aditya Bamzai of the University of Virginia, and Katie Townsend of the Reporters Committee for Freedom of the Press. If you missed the live webinar, then you can find the video archived here, and the audio is available on our podcast here.
Of course, the Court’s new year is not the biggest event of the moment. Election Day is just days away. If President Trump wins reelection, it will put fresh wind in the sails of the Administration’s various initiatives. And if former Vice President Biden is elected, then we will see a new Administration try to undo its predecessor's programs and start their own programs anew.
These two things—the courts, and presidential politics—are not unrelated. So many of the issues that the Court is grappling with—on agency independence, judicial deference, and the process for making and unmaking administrative programs—reflect the increasingly partisan nature of modern administration, the increasingly wild swings in policy from one administration to the next, and the breakneck speed with which each new administration races to erase its predecessor’s work.
The Gray Center will be studying these issues quite a lot in the years ahead, and I might have a few thoughts of my own. But in the meantime, I’ll just point out that next year marks the twentieth anniversary of then-Professor Elena Kagan’s famous article, "Presidential Administration." It seems a good moment to re-read that article with the benefit of two decades’ hindsight.
All the best,
Adam White
Executive Director
The C. Boyden Gray Center for the Study of the Administrative State
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Working Papers: Read the Latest
The following papers were workshopped at a Gray Center roundtable titled, “First Branch, Second Thoughts – What is Congress’s Proper Role in the Administrative State?”
This paper explores the history and the future of legislative and executive support for cost-benefit analysis as applied to agency actions.
In this article, the authors explore the relatively unknown and non-partisan institutions within Congress that form the “congressional bureaucracy.” The paper reflects on what this collection of institutional entities means for separation of powers, delegation, and the role of Congress in the eyes of the public.
This paper addresses the long shadow cast by the Clean Air Act Amendments of 1970 and the effect those amendments have had on trust in federal agencies, cooperation between the government and private industry, and the regulatory system more broadly.
The authors argue that members of Congress that tend towards the ideological extremities of their party have more natural incentives to do the work of congressional oversight.
Author Joseph Postell writes here on the Legislative Reorganization Act of 1946 and the aspirations that the 79th Congress had for it, vis-à-vis the vision those same lawmakers had for the APA, and why neither act succeeded in achieving its goals.
Following the Republican Revolution of 1994, House Republicans still held an antagonistic view of Congress as an institution. Philip Wallach argues that this bias against the federal legislative power is why the 104th Congress did not take any meaningful action to reform the modern administrative state.
The following paper was workshopped at a Gray Center roundtable titled, “Delegations and Nondelegation after Gundy”
In this article, author Nicholas Parrillo describes federal boards of tax commissioners established by Congress in 1798 and argues that the powers exercised by these boards are an example of an early congressional grant of rulemaking power that was both coercive and applied domestically.
The following paper was workshopped at a Gray Center roundtable titled, “Should Internet Platform Companies Be Regulated – And If So, How?”
This paper suggests reforming the regulatory process with built-in mechanisms to reduce uncertainty and with procedures that allow for easy adaptation as new information comes to light.
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Now Streaming: Recent Event Videos
Catch up on video recordings of our latest events:
On Oct. 23, 2020, the Gray Center hosted a webinar to discuss the new Supreme Court term, with expert speakers including Professor Jonathan Adler of Case Western Reserve University, Professor Aditya Bamzai of the University of Virginia, and Katie Townsend of the Reporters Committee for Freedom of the Press. The conversation was moderated by the Gray Center's Executive Director, Adam White. Watch the event video here.
Fifty years after President Nixon signed it into law, the National Environmental Policy Act (NEPA) has had many impacts. On Sept. 24, 2020, the Gray Center hosted a webinar featuring Professor E. Donald Elliott of Yale Law, Scalia Law, and Covington & Burling, and Professor Michael Gerrard of Columbia Law to discuss the way NEPA has been implemented and how it might be implemented in the years ahead. You can watch the event video here.
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"Arbitrary and Capricious": Listen to our Most Recent Podcast Episodes
In this episode of the podcast, you can hear the audio from our Oct. 23, 2020 webinar on the new Supreme Court term, which featured expert commentary from Professor Jonathan Adler, Professor Aditya Bamzai, and Katie Townsend. Listen here.
Congress’s enactment of the Clean Air Act fifty years ago was meant to change our environmental impacts—but did it change Congress, too? In this episode, Professor Frank Manheim discusses his new working paper on this topic with David Schoenbrod and Adam White. Listen to the episode here.
The executive branch’s bureaucracy gets a lot of attention. But Congress’s bureaucracy gets much less—though it is extremely important. In this podcast episode, Professors Abbe Gluck and Jesse Cross join Adam White and Josh Chafetz to consider what “the congressional bureaucracy” tells us about Congress itself and the laws that it enacts. Listen here.
We often think of modern cost-benefit analysis as being a requirement primarily of executive orders, not statues. But Congress has done much on matters of cost-benefit analysis, too, often requiring agencies to consider costs and benefits, and sometimes even requiring rules to be net-beneficial. The topic is tackled by Scalia Law's Caroline Cecot in a new Gray Center working paper. In this episode, Prof. Cecot expands upon the paper with Adam White and Ricky Revesz, NYU’s Lawrence King Professor of Law.
In 1994, Republicans won control of the House of Representatives for the first time in 50 years and undertook major institutional reforms. What do those reforms tell us about conservatives’ modern views of the Constitution’s first branch of government, and how did those reforms affect Congress’s relationship to the President and administrative agencies? Philip Wallach of the American Enterprise Institute joins the podcast to answer these and other related questions alongside Molly Reynolds of the Brookings Institute and Adam White.
Administrative law scholars think of 1946 as the year that Congress enacted the Administrative Procedure Act. But too often we neglect another major law that Congress enacted in that year: the Legislative Reorganization Act (LRA), which was intended to position Congress for long-term management of the administrative state. Professor Joe Postell of Hillsdale College discusses the history of the LRA and how it can inform debates about Congress today with Adam White and Scalia Law's Jeremy Rabkin.
Former FTC commissioner and director of Scalia Law's Global Antitrust Institute Joshua Wright joins Adam to discuss a National Affairs essay he co-authored with Jan Rybnicek on recent calls to use antitrust law to regulate or break up “big tech” companies. The new House Judiciary Committee staff report calling for government regulation or break-up of Amazon, Apple, Facebook, and Google is also a topic of conversation. Take a listen here.
On September 24, 2020, the Gray Center and Scalia Law's Society for Energy and Environmental Law hosted a webinar to discuss the state of the National Environmental Policy Act (NEPA) 50 years after it was signed into law by President Nixon. The webinar brought together two leading experts to discuss the issue: Professor E. Donald Elliott of Scalia Law, Yale Law, and Covington & Burling; and Professor Michael Gerrard of Columbia Law. Listen to the audio here.
In Oil States Energy Services v. Greene’s Energy Group, the Supreme Court upheld the constitutionality of the U.S. Patent and Appeal Trial Board, a new regulatory body empowered to revoke companies’ patents through an administrative process instead of a judicial trial. To examine the major ramifications of the decision for both intellectual property law and the innovation economy, Adam Mossoff, Professor of Law at Scalia Law School and Co-Founder of the law school's Center for the Protection of Intellectual Property (CPIP), joins the podcast.
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Staff Highlights
Get to know Leah Davenport! - Leah is the Associate Director for Events and Operations at the C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School. Leah joined the Gray Center in September 2016. Prior to joining the Center, Leah was a Risk Advisory Consultant at Ernst & Young. She is a 2014 graduate of Penn State University, where she earned a B.A. in Public Relations and a B.S. in Supply Chain and Information Systems. In her spare time, Leah enjoys exploring Northern Virginia wineries, adventuring outside of the U.S. to small towns with her husband (pre-COVID), and cooking up new recipes for friends and family to enjoy.
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Now Published: See Where the Latest Gray Center Scholarship Has Appeared
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Distinguished Work: Updates on our Advisory Council, Affiliated Faculty, and Distinguished Senior Fellows
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On Friday, Oct. 23, 2020, Gray Center Affiliated Faculty Member, Judge Douglas H. Ginsburg (right), was presented with the Sherman Award, the Department of Justice's highest antitrust honor. Read Assistant Attorney General Makan Delrahim's remarks from the ceremony here.
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Judge Ginsburg also created the PBS documentary A More or Less Perfect Union, which features perspectives and interviews from constitutional experts of all stripes examining the key issues of liberty. The three-part series can be found here.
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In a recent op-ed in The Baltimore Sun, Gray Center Affiliated Faculty Member Mark Rozell, Dean and Professor at GMU's Schar School of Policy and Government, considers the role religion is playing in the 2020 election.
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In light of the civil unrest of the Summer of 2020, Gray Center Affiliated Faculty Member David Bernstein, of Scalia Law, wrote an article defending the position that the right of armed self-defense remains important today. Find the article on SSRN here and Bernstein's short post about his paper in The Volokh Conspiracy here.
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The Scalia Law School's J.W. Verrett, also an Affiliated Faculty Member at the Gray Center, penned a piece in The Hill arguing for the SEC to take a pro-innovation approach to regulatory approvals that benefit investors. Read it here.
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On the occasion of the 10th anniversary of The Regulatory Review, Sally Katzen of the New York University School of Law, a Gray Center Distinguished Senior Fellow and Advisory Council Member, examines why regulations have become unpopular amongst a large segment of the public. Take a look here.
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Gray Center Distinguished Senior Fellow and Advisory Council Member C. Boyden Gray, of Boyden Gray & Associates PLLC, published two recent op-eds in The Hill which tackle hot-button issues. One piece centers on election integrity and the other considers the potential consequences of packing the high court.
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"Summary Judgment"
Past Gray Center Scholarship & Today's News
On Oct. 19, the Supreme Court granted certiorari to three new cases, two of which are centered on immigration. Find coverage of the grants below:
Trump v. Sierra Club concerns the lawfulness of the Trump administration’s decision to spend $2.5 billion originally earmarked for military-personnel funds on border wall construction.
In Wolf v. Innovation Law Lab, the justices will consider the legality of the Migrant Protection Protocols and whether the policy also known as "Remain in Mexico" had to go through notice and comment under the APA. Additionally, the justices will assess whether the district court's order of a nationwide injunction was proper.
To read more about the nationwide injunction issue, take a look at the following pieces:
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In The Volokh Conspiracy, Prof. Samuel Bray has a short post explaining Ninth Circuit Judge William Fletcher’s reasons for affirming the district court’s nationwide injunction in this case. Read it here.
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The Hon. Ronald A. Cass wrote a working paper for the Gray Center on the topic, arguing that the use of nationwide injunction relief by lower courts undermines rule-of-law values and is at odds with basic aspects of the federal judiciary’s design. Find it here.
The question of whether these cases might be rendered moot should Joe Biden win the election next month is touched upon in the following pieces:
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In SCOTUSblog, Prof. Steve Vladeck argues that something as mundane as when a case is scheduled for argument can have substantive implications. Read more here.
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According to Mayor Michael Wildes, regardless of who is in office in January 2021, it’s time to consider long-lasting, sensible change to immigration law. Take a look at his piece in The Hill here.
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In one paper, Prof. Ming Hsu Chen and Zachary R. New explain that the Trump administration has introduced and implemented many subtle challenges to legal migration, which they say collectively constitute a “second wall”. Read it here.
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In another, Prof. Michael Kagan argues that a reassessment of whether deference to the executive branch makes sense when interpreting asylum law is critical. Find it here.
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Finally, in a third, Prof. Christopher Walker calls on courts to utilize dialogue-enhancing tools when remanding flawed immigration adjudications back to agencies. Read it here.
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"Notice and Comment"
Things Worth Reading
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Tech and Policy: In October, Professor Tom Hazlett joined the Center’s biweekly Zoom meeting with student fellows, to discuss the past, present, and future of FCC licensing and auctions. This year, Professor Hazlett has written a number of articles on current issues of tech regulation, including a January op-ed in the Wall Street Journal on antitrust and big tech companies, and an early summer article for City Journal on how American and European regulatory frameworks affected the availability of broadband Internet access during the Covid-19 pandemic.
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"Big Decisions in Administrative Law": In a recent episode of "Resources Radio," the podcast of Resources for the Future, Jody Freeman and Jeff Holmstead discussed the possible future(s) of climate change, energy regulation, and the Supreme Court.
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The Wake-Up Call: That’s the title of a fascinating and challenging new book by John Micklethwait and Adrian Wooldridge. (The subtitle: “Why the Pandemic Has Exposed the Weaknesses of the West.”) The authors discussed it recently in a forum hosted by Intelligence Squared, and a few weeks earlier in a Common Good forum with Francis Fukuyama, Megan McArdle, and Philip Howard. For a preview of the book, read their recent essay on the statesmanship of Abraham Lincoln and William Gladstone.
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U.S. v. Google: In an episode published this week, Adam White joined the National Constitution Center's "We The People" podcast to talk technology and antitrust with Professor Tim Wu and with the NCC's president Jeff Rosen.
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This newsletter is edited by Molly Doyle,
Associate Director for Communications for the C. Boyden Gray Center for the Study of the Administrative State
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