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Dear Friends,

At a time when your inboxes are probably overflowing with holiday cheer, I promise to keep this last letter of 2020 short and sweet.
 
On behalf of the Gray Center team, thank you so much for being part of our community throughout the year. For almost the entire year, we were unable to meet in-person; from March onward, our discussions and debates have been strictly online. Yet you have been as encouraging as ever before, and I hope that our socially distanced programs—the webinars, the podcasts, and everything else—have met your high standards. 
 
Covid-19 not only challenged us to rethink how we connect with you; it also challenged us to think anew about administrative law itself. In early autumn, the Center hosted two research roundtables centered around lessons learned from the federal and state governments’ responses to the pandemic. I look forward to sharing the working papers with you early next year.
 
But in the months ahead, most attention will be focused on the presidential transition, and the Gray Center is no exception. We recently announced our upcoming series of webinars, “The Administrative State in Transition.” In the week before the inauguration, we will host discussions on the future of White House Regulatory Oversight, and the future of Energy and Environmental Regulation. You can find information about those webinars on our website, and please stay tuned for announcements of more webinars in the series: on financial regulation, tech policy, and criminal justice reform.

We wish you a peaceful holiday season, and a happy New Year.

All the best,

Adam White
Executive Director
The C. Boyden Gray Center for the Study of the Administrative State
Center of Activity: Upcoming Events

Register for our Pre-Inauguration Webinars!

In mid-January, the Gray Center will begin hosting a series of Zoom webinar discussions, "The Administrative State in Transition," about the future of regulatory reform in the Biden Administration.

We hope you'll join us. Sign up below!

  • Jan. 12 at 1:15 p.m. ET: “The Future of White House Regulatory Oversight in the Biden Administration” Register Now >>

  • Jan. 14 at 1:00 p.m. ET: “The Future of Environmental and Energy Policy in the Biden Administration" Register Now >>


Additional webinars in the series to be announced, tentatively planned for February and March.
Working Papers: Read the Latest

The following paper comments on a previous Gray Center Working Paper, which you can read here


In this paper, author Christopher DeMuth compares two mechanisms for regulatory oversight: cost-benefit analysis and the regulatory budget proposed by Jim Tozzi, among others. DeMuth analyzes the history of White House regulatory oversight and the cost-benefit standard and argues that the cost-benefit standard has the advantage as an elastic constraint that has performed well under both Republican and Democrat White Houses. 

The following paper was workshopped at a Gray Center roundtable titled, “Delegations and Nondelegation After Gundy”

Delegation at the Founding by Julian Davis Mortenson and Nicholas Bagley

In response to the apparent resurgence of the nondelegation doctrine, the authors argue that the Constitution at the founding had no prohibitions on delegations of lawmaking power by Congress, and that the founders saw the separation of powers in a nonexclusive light. In defense of this position, the paper provides examples of many laws passed by early Congresses that contained delegations to the other branches of the federal government.
Now Published: See Where the Latest Gray Center Scholarship Has Appeared

Office of Information and Regulatory Affairs: Past, Present, and Future by Jim Tozzi, 11 J. Benefit-Cost Analysis 2 (2020)

Commentary on Jim Tozzi, “Office of Information and Regulatory Affairs: Past, Present, and Future by Christopher DeMuth, 11 J. Benefit-Cost Analysis 41 (2020)
Distinguished Work: Updates on our Advisory Council, Affiliated Faculty, and Distinguished Senior Fellows


  • Sally Katzen, a Gray Center Distinguished Senior Fellow and Advisory Council Member, co-authored an op-ed in the Wall Street Journal with Susan Dudley. Both former administrators of OIRA, the authors expressed their alarm to hear reports that "OMB Director Russell Vought has, in the waning days of the administration, reclassified 88% of the OMB's career staff into a new Schedule F category that means they can be hired and fired at will on political grounds." Read the full piece here.

  • Professor Jennifer Nou, Gray Center Advisory Council Member, participated in a SCOTUSblog symposium ahead of the oral arguments in Trump v. New York. You can read her analysis on the case here, in which she argues that the census ought to be depoliticized through administrative process.

  • Earlier this year, The Heritage Foundation published an essay authored by Scalia Law's Prof. Jeremy Rabkin, an Affiliated Faculty Member at the Gray Center, as part of a series entitled "First Principles of International Human Rights". Find it here.

  • In a piece on the Niskanen Center's website, Prof. David Schoenbrod, a Gray Center Advisory Council Member, argues that it is imperative to curb presidential power-grabs and excesses. Read it here.
"Summary Judgment"
Past Gray Center Scholarship & Today's News

On Dec. 10, the Supreme Court decided Tanzin v. Tanvir, ruling unanimously that the Religious Freedom Restoration Act allows plaintiffs whose rights are violated to sue individual government actors for money damages. The plaintiffs in this case were three Muslim men who had been placed on the "no fly" list after they refused to become FBI informants against members of their religious community. Read Justice Thomas' full opinion here and Amy Howe's analysis on SCOTUSblog here.
 
Tanzin v. Tanvir is the latest religious liberty case to be decided by the high court this term. Last month, the justices granted requests from the Roman Catholic Diocese of Brooklyn and two Orthodox Jewish synagogues to block enforcement of a New York Covid-19 executive order restricting attendance at houses of worship. Take a look at the opinion here and Adam Liptak's coverage of the case in The New York Times here. More cases involving Covid restrictions on churches and other houses of worship are expected to percolate up to the Supreme Court.
 
Another high-profile religious liberty case, Fulton v. City of Philadelphia, is yet to be decided. The case asks whether Philadelphia violated the Free Exercise Clause by canceling a taxpayer funded contract it had with Catholic Social Services (CSS). Philadelphia terminated the contract on the ground that CSS' religious beliefs prevent it from certifying same-sex or unmarried couples who want to become foster parents. A recording of the oral arguments, which were held on Nov. 4, can be found on C-SPAN. Also, take a look at this SCOTUSblog symposium which brought together various posts on the case prior to oral arguments.
 
For related reading, consider checking out one or two of the papers from our 2019 "Religion & Administrative Law" conference. Here is a selection:
  • In one paper, Prof. Mark Rienzi examines the increasing number of religious exercise cases in which the conflict was caused by an act of administrative power. Read it here.
  • In another, Prof. Mark Movsesian looks at the broad implications of the seemingly narrow Masterpiece Cakeshop decision. Take a look here.
  • In a third, Prof. Helen Alvaré considers how agencies might improve regulations on sexual and reproductive health while avoiding clashes with religion. Find it here.
"Notice and Comment"
Things Worth Reading




  • Congratulations: Andrew Kloster, the Gray Center’s former Deputy Director, is being appointed by President Trump to the leadership council of the Administrative Conference of the United States.

This newsletter is edited by Molly Doyle,
Associate Director for Communications for the C. Boyden Gray Center for the Study of the Administrative State