Dec 4, 2025 Richard Murphy
Recently, for whatever reason, I found myself thinking that it would be helpful to read something that could help me order my scattered thoughts about presidential control of regulatory power. Maybe because of all the executive orders. Fortunately, I ran across just the thing, Presidential Regulation, by Professors Timothy Meyer & Ganesh Sitaraman, which provides a wonderfully illuminating account of the nature, history, implications, and likely future of, well, presidential regulation.
Meyer and Sitaraman explain that presidential regulation “takes place when the President relies on his own powers—whether statutory, constitutional, or a combination thereof—to regulate the U.S. economy in ways not explicitly contemplated or directed by Congress.” (P. 807.) Presidential regulation is thus distinct from “presidential administration,” a la Justice Kagan, which involves presidents “shaping and taking credit for agency actions.” (P. 809.) Rather, presidential regulation involves direct exercise of powers delegated to the president by the Constitution or Congress.
Two other characteristics of presidential regulation help explain why presidents might prefer it. One is that a complex set of doctrines limits the availability and scope of judicial review of presidential, as compared to agency, action. Courts are therefore less likely to muck up presidential regulation. Another is that agency actions are subject to a range of procedural requirements, imposed by Congress or the White House, that do not burden presidential actions. Most notably, the Administrative Procedure Act, which generally requires notice-and-comment procedures for agency legislative rulemaking, does not apply to presidential action. The upshot is that considerably less “administrative law” impedes presidential regulation.
Meyer and Sitaraman provide a brief historical account of the “progenitors” of presidential regulation. Early examples include the regulation of trade with combatants, including President Washington’s Proclamation of Neutrality and President Lincoln’s blockade of Confederate ports. (P. 825.) Later examples focus on presidents’ exercise of statutory powers to set tariffs starting in the nineteenth century and their extensive exercise of economic emergency powers in the twentieth. Congress has enabled the latter by passing many statutes that grant presidents effectively unreviewable power to declare that an “emergency” exists, coupled with sweeping powers to address that emergency. (Pp. 830-835.) The International Emergency Economic Powers Act (IEEPA), which President Trump has made the centerpiece of his second administration’s tariff regime, figures prominently in this discussion.
Meyer and Sitaraman contend that the last eight years, since the beginning of the first Trump administration, have marked a new “normalization” of the use of presidential regulation, at least nominally connected with some foreign policy concern, to unilaterally control the domestic economy. To support this contention, they describe a series of Trump and Biden administration actions including: 1) Trump’s invocation of section 232 of the Trade Expansion Act of 1962 to impose steel and aluminum tariffs; 2) Trump’s imposition of sweeping tariffs on China under section 301 of the Trade Act of 1974; 3) Trump’s invocation of IEEPA to impose tariffs to address “emergencies” relating to the trade deficit and fentanyl; 4) Trump’s invocation of the Constitution, IEEPA, and the National Emergencies Act to justify security controls on the bulk-power system; 5) invocation of the Defense Production Act (DPA) by both Trump and Biden to address supply chain issues relating to COVID-19; 6) Biden’s invocation of the DPA to prioritize development and deployment of green energy technologies; 7) invocation of IEEPA by both Trump and Biden to regulate telecommunications (e.g., Biden’s executive order banning the sale of bulk personal data); and 8) Biden’s invocation of the DPA to justify a regulatory regime for artificial intelligence. (Pp. 835-850.)
Whew!
The balance of Presidential Regulation discusses why so much presidential regulation is happening now, why we can expect more of it in the future, and the unfortunate implications of this shift for good governance.
The “why now” question arises in part because presidential regulation generally relies on a mix of constitutional authorities, which have been around for a couple of centuries, along with statutory authorities that are many decades old. Meyer and Sitaraman attribute the recent, massive expansion of presidential regulation to “congressional inaction and polarization, the rise of expansive theories of presidential power, the decline of deference to administrative agencies, and a resurgence in judicial deference to presidential actions in foreign affairs coupled with the blurry boundary between foreign and domestic affairs.” (P. 850.) Of this lot, I can’t help but think that the decay of congressional interest and capacity, which Meyer and Sitaraman list first, is the primary driver. Also, an image of velociraptors probing electric fences keeps coming to mind.
The authors close with a discussion of some unfortunate implications of the rise of presidential regulation, which include less transparent, less accountable, and less democratic governance. They reject the shibboleth that presidential action is necessarily democratic in nature, as the president is the nationally elected avatar of the people’s will. As they aptly observe, “[w]hile legislation reflects compromise among representatives from all over the country, and agency rulemaking is subject to procedures that ensure affected parties have an opportunity to participate, presidential regulation (like presidential control of foreign affairs) has none of these features.” (P. 862.) Free from procedural safeguards that ensure democratic participation and transparency, a president engaged in presidential regulation “decides which outside interest groups to consult, which experts within or without the government to seek advice from, and which domestic constituencies to favor.” (P. 862.) Democracies, one might think, should be careful about handing out that kind of power.
The rise and rise of presidential power is one of the great political, legal, and social stories of our time. Professors Meyer’s and Sitaraman’s excellent article, Presidential Regulation, rewards the reader with a wealth of fascinating detail and analysis of an increasingly important dimension of this power.
Nov 6, 2025 Jameson Payne
As a quick search through JOTWELL’s archives will prove, scholars have given no shortage of attention to universal remedies. And it’s no surprise why: the question of whether courts can grant non-party relief is not just a thorny constitutional matter; its practical effects are also immense. Therefore, the universal remedies debate has enjoyed lively back and forth, with compelling arguments—some historical, some pragmatic—issued from both camps. And while this debate raged on, the Supreme Court sat in patient wait, signaling its views with a concurrence here and there, waiting for the opportune moment to strike. And strike it did.
One might think that SCOTUS’ ruling last term in Trump v. CASA will inter the universal remedies debate, at least practically, since it ruled that “universal injunctions likely exceed the equitable authority that Congress has given to federal courts.” But this is improbable. While injunctions may be off the table, the opinion made an important caveat for alternative types of universal relief. Perhaps the most significant among these alternatives is “vacatur,” which some argue is permitted by the Administrative Procedure Act’s instruction that courts “hold unlawful” and “set aside” agency action. With standard-issue universal injunctions no longer permitted, vacatur must now work overtime to meet the demand for nationwide relief. The focus of the debate, therefore, shifts to vacatur, and all the same problems raised in CASA must now be reconsidered. Does vacatur run afoul of the same Article III principles that nationwide injunctions do? And what are its costs and benefits?
It is into this debate that Eli Nachmany enters, showing at least one pitfall to the anti-vacatur position. In his article, Vacatur as Complete Relief, Nachmany reviews a lesser-known SCOTUS case from this term—Diamond Alternative Energy v. EPA—and uses it to illustrate an unreckoned consequence of reading vacatur out of the APA.
The thrust is this: in Diamond Alternative, the Court dealt with a challenge by fuel producers against the EPA allowing California to impose strict fuel-emission standards. But the important thing to note is that the fuel producers were not regulatees. Rather, they were “unregulated third-party plaintiffs” whom the EPA regulation had “adversely impacted.” It was therefore unclear whether the plaintiffs’ injury was redressable for Article III purposes: was there sufficient likelihood that rescinding the regulation would remedy the downstream market effects that had harmed their economic interests?
The Court answered yes, appealing to “dynamic markets and the effects of interrelated economic forces and regulatory programs that change over time.” But that is hardly the most interesting part of this case. What Nachmany takes away from Diamond Energy is the fact that vacatur was the only remedy that could redress plaintiffs’ injury. Because they were not regulatees, they could not get an injunction against the agency. Nor could they enjoin the regulatees themselves, since the APA does not permit private suits. Rather, the Court had to vacate the rule altogether.
The upshot of this observation is that many injuries brought by adversely affected parties depend upon vacatur. And vice versa, killing vacatur becomes a strong medicine, since “unregulated third parties [would] not be able to challenge agency action that has a predictable, adverse effect on them.” A similar problem was brought up in Corner Post v. Board of Governors of the Federal Reserve: but in that case, as John Harrison has shown, relief could have been granted without vacatur. What Nachmany demonstrates through Diamond Alternative is that there is a meaningful class of cases whose only recourse is vacatur.
Showing great charity to his interlocutors, Nachmany acknowledges that his argument is a pragmatic one, and that “[u]nder prevailing theories of statutory interpretation… policy consequence[s] [are] largely irrelevant to the task of determining what “set aside” means in the Administrative Procedure Act.” Indeed, several authors—including John Harrison, Aditya Bamzai, and myself—have raised historical and constitutional objections to vacatur. The question, therefore, becomes whether the Court is willing to follow textualism to its bitter end, foreclosing a large swath of regulatory challenges in the process.
But in fact, the historical question is not so simple. What exactly the twentieth-century courts understood themselves to be doing when they “set aside” a rule is obscure. Scholars like Mila Sohoni have argued that the APA imports language from so-called “special statutory proceedings,” which she believes could grant universal relief. Others, like myself and Aditya Bamzai, have looked instead at the claim-preclusive effect of judgments at the time, concluding that one court’s vacatur could not bind a collateral jurisdiction. Unfortunately, there has been no silver bullet. Remarkably, however, Nachmany’s article may give us a new route towards escaping this historical quagmire.
By reformulating a remedy problem as a standing problem, the question becomes much simpler. When did courts start allowing non-regulated parties to challenge agency action? By the same logic that Nachmany reads into Diamond Alternative’s redressability problem, it follows that courts would have to grant vacatur to effect “complete relief” in challenges by non-regulated parties. To this end, he cites one circuit case from the 1940s, A.E. Staley Manufacturing Co. v. Secretary of Agriculture, where this type of suit may have been entertained. I am unsure how much should be read into this case, which I analyze in my own article. But what matters is not Staley’s holding, and instead that we now have a useful route for homing in on vacatur’s historical origin.
This procedure cuts through the impenetrable subtleties of pre-APA administrative law that scholars have used—to limited avail—in an attempt to solve whether the APA allows vacatur. The question simply becomes one of standing, a concept whose development is better documented and less complicated. By providing a strong practical argument, Nachmany has inspired us with the means towards a new history of universal relief.
Oct 7, 2025 Margaret Kwoka
Jonathan David Shaub,
White House Inspection, 103
Wash. U. L. Rev. __ (forthcoming 2026) available
at SSRN (Feb. 25, 2025).
Allegations of illegality—sometimes quite serious in nature—are, sadly, no stranger to the presidency. Nearly every recent President has faced some sort of scandal and attendant inquiry. They all sound familiar. Obviously, there is Nixon’s benchmark Watergate scandal. But then there is also the Iran-Contra affair of Reagan’s presidency. Clinton’s extramarital activities. George W. Bush’s involvement in outing Valerie Plame as an undercover CIA officer. Biden’s personal possession of classified documents. Trump’s involvement in the January 6 attacks on the Capitol. Safe to say, these matters show no sign of abating. The theater of investigations that follow these scandals is also familiar, all promising some version of accountability. Special prosecutors are appointed. Inquiries are launched. Grand juries are sometimes convened. Congress may even bring articles of impeachment or hold an actual impeachment trial.
But the political fight often focuses on the investigation itself. Claims of executive privilege prevent access to key documents, allegations of partisanship color the investigations, and constitutional constraints abound, all while accountability remains elusive. In an incredible read and a fantastic example of one of my favorite forms of scholarship, Professor Jonathan Shaub sketches a vision for reforms that parts the muddy waters of our current practices and shows us a practical and meaningful path to accountability at the highest levels of the executive branch. Indeed, the best part of Professor Shaub’s vision, laid out in White House Inspection, is that he divorces the trickier consequences—actual enforcement or legal peril—from the kind of accountability that frankly has often had greater effect, the watchful eye of an independent party empowered to inspect the actions of the President.
Professor Shaub begins by documenting and evaluating our current methods for executive accountability: primarily special prosecutors and congressional investigations. (He also briefly explores special commissions, such as the 9/11 Commission, or inspectors general, but these bear less direct relevance to investigating presidential misconduct.)
Carefully tracing the history, Shaub demonstrates how special prosecutors predate Watergate, but Watergate made them more prominent. After that scandal, the Ethics in Government Act of 1978 established the office of Independent Counsel as a permanent feature of the Department of Justice. Yet, subsequent high-profile investigations nonetheless appeared partisan, and the power of the office was questioned, leading to its lapse in statutory authorization. Subsequently, the DOJ enacted regulations (still in effect) to authorize the Attorney General to appoint an internal independent prosecutor in their discretion, and even recent special prosecutors have been appointed outside that authority and not constrained by its provisions.
Why aren’t independent or special counsel sufficient for these purposes? In short, Shaub compellingly explains, they have never really operated independently enough in some respects, yet have operated all too independently in others. For example, these investigations have become political weapons in many instances, rather than investigations by neutral third parties. But they also have empowered the appointed individual to specially investigate a single person to the full extent of their authority, justifying their existence only by racking up enormous costs, burdening the target of their investigation, and eventually finding some offense to show for it. Indeed, this “single-purpose prosecutor” risks serious interference with the executive by doggedly pursuing their mission to the fullest extent of their authority.
Congressional investigations fare no better in Shaub’s evaluation. While Congress’s authority to investigate executive malfeasance—including to demand information by subpoena—is an implied power directly under its constitutional legislative authority, Shaub describes how the scope of that constitutional authority is often contested in important ways. Indeed, both the breadth of Congress’s authority and, perhaps more prominently, the fight over whether Congress’s subpoena power is subject to claims of executive privilege and in what context are inherent separation of powers conflicts that potentially limit Congress’s reach. In addition, Congress has no enforcement authority for its subpoena power, and going to court is typically impracticable. Beyond constitutional concerns, however, Congress is so inherently partisan that its investigations lack the kind of legitimacy in the eyes of the public that one would hope for. And finally, but importantly, Congress often lacks the expertise needed to effectively investigate.
On top of those failures, both independent prosecutors and congressional investigations present problems regarding confidentiality. The executive branch does not want to lose control over sensitive information to another branch of government, especially one with potentially partisan motivations that incentivize disclosures. And the internal investigations with special prosecutors have the ancillary effect of producing an enormous volume of materials that lead to Freedom of Information Act requests and other fights over access.
This leads us to the payoff of Shaub’s fascinating history and careful critique of our existing oversight mechanisms. Shaub makes a conceptual move that is as simple as it is brilliant: he advocates for carving out any actual law enforcement function, and creating a body whose sole purpose is to, as he puts it, “inspect.” Shaub asserts that by focusing on “inspection” (as distinct from investigation which accompanies an expected prosecution), the function can be housed in a body that maximizes independence, objectivity, expertise, and accountability. This new “inspection” function would be housed in a standing multimember body located in the Department of Justice, but granted various protections for independence (such as staggered terms, appointment qualifications, party balance, and, so long as we have them, removal protections). This body would be empowered to collect information about White House activities, including the power to issue administrative subpoenas, but not the power to bring charges or enforce, for which referral to another authority would be necessary. Solutions that stand apart from criminal prosecution are more necessary than ever, given that the Supreme Court raised the specter that some vast swath of presidential conduct is beyond the reach of criminal investigations entirely in Trump v. United States. Even if not referring any matter for criminal enforcement, however, Shaub says this body should be required to make regular reports to the DOJ and to Congress concerning its activities.
This sort of internal watchdog, Shaub points out, is not brand new; analogs are sprinkled here and there in existing practices. But for those of us thinking hard about new kinds of accountability structures in government, a proposal like this is extremely exciting. In the past, I have proposed an independent information commission as a mechanism to implement and enforce government transparency obligations; Professor Shaub’s proposal shares some core features by imagining a government counterweight to ever-growing executive power. But what Shaub does beautifully is imagine not just how this body could solve the existing problems, but the ways that this opens up possibilities for flexibility moving forward. He posits that this body also be charged with inspecting judicial ethics matters at the Supreme Court, or could Congress delegate competency inquiries to this body for the purposes of the 25th Amendment?
If you, like I, are desperately seeking more creative solutions for accountability in government, you should read Shaub’s illuminating work. And then we should figure out how to make that vision a reality.
Sep 15, 2025 Mila Sohoni
Looming over our law, or lurking beneath it, are theoretical frameworks that guide how we think about it. With respect to administrative law, there are two such influential frameworks that will immediately spring to mind and that share much in common: originalism and cost-benefit analysis.
What? Readers might already be scratching their heads. This strange pairing would seem to be worlds apart. Originalism is the stuff of lofty theory and founding-era history and hard-fought debates concerning the nature of fundamental rights and the separation of powers. Cost-benefit analysis, in contrast, is the stuff of pocket protectors and green eyeshades and hard-fought debates concerning discount rates and valuations. Originalism is for lawyers; cost-benefit analysis is for economists. But as Professors Jonathan Masur and Eric Posner demonstrate in a recent article, The Common Political Foundations of Originalism and Cost-Benefit Analysis, the two have more kinship than meets the eye.
Professors Masur and Posner argue that originalism and cost-benefit analysis are best understood not as neutral methodological tools but as analytical frameworks that have risen to prominence through the financial backing and political mobilization of business interests. Their provocative paper presents originalism and cost-benefit analysis as ideas with shared genealogies and eerily similar effects: both emerged in the 1970s, both gained institutional traction through sustained advocacy campaigns, and both have served to constrain governmental action in ways that align with pro-business preferences. Far from being apolitical techniques that emerged organically from intellectual discourse, both of these “midlevel methods” (P. 68) were nurtured and promoted by “an overlapping web of business groups and intellectual support from academic supporters associated with pro-market trends in intellectual and political circles in the 1970s and 1980s” (P. 68).
The empirical case that the authors present centers on the period from the 1970s through the 2020s. They trace the rise of both methods by showing that references to cost-benefit analysis and original meaning show parallel rising trajectories in academic articles and judicial opinions (Pp. 75-77). They then consider why there was a joint rise in these ideas (P. 82). They contend that the emergence of neoliberalism helped along cost-benefit analysis, but argue that the “neoliberal turn, stimulated by economic stagnation that was blamed on policy judgment, not on judicial decisions, is not a good explanation for the rise of originalism” (P. 85). They reject the hypothesis that originalism and cost-benefit analysis achieved prominence because of their “democratic sanction” (P. 87), finding little evidence that either cost-benefit analysis or originalism has garnered meaningful support from Congress, the public, or the President. Ultimately, they maintain, the rise of this pair of ideas comes down to money and to the business interests that supply that money: “Ideas matter, but they matter more if they are funded.” (P. 93.) Their excavation of the organizational ecosystem that has supported both originalism and cost-benefit analysis is fascinating: they list about a dozen organizations “funded by the Koch network that have promoted originalism and cost–benefit analysis” (P. 99), and conclude that “business’s role in promoting cost–benefit analysis and originalism is unmistakable” (P. 100).
The authors next proceed to identify how, “like twins separated at birth,” the two theories “bear a striking conceptual resemblance” (P. 101). Both of them claim to constrain decision-making while preserving enough flexibility to avoid harsh outcomes in politically salient cases. Both rest on technocratic foundations that empower communities of experts—lawyers and historians for originalism, economists for cost-benefit analysis—to police the boundaries of acceptable practice (P.107). And both methodologies are tied to empirical anchors—history for originalism, math for cost-benefit analysis—that provide at least the appearance of “scientific rigor” (P. 107).
The question going forward is whether these two frameworks will endure. The authors detect growing “cracks” (P. 107) in the coalitions that have sustained both methods. The Biden Administration’s revision of OMB Circular A4 to incorporate distributional weights fractured the cost-benefit analysis community, with business groups and academic economists pushing back against what they saw as a departure from orthodox methodology to include welfarist concerns. (Pp. 109-11.) In the wake of this conflict, “[t]he bipartisan consensus that supported [CBA] has evaporated” (P. 111). Similarly, the authors hazard that we may have reached “peak originalism” (P. 111), as originalist justices occasionally rule against business interests on originalist grounds—a development that could eventually erode corporate support for the method. (They acknowledge, however, that another path forward would be simply “inconsistent originalism—originalism when it benefits the business community, but not when it harms it” (P. 113)). Ultimately, if “midlevel legal methods” such as originalism and cost-benefit analysis depend on coalition maintenance rather than on pure intellectual merit, they are vulnerable to the risk of losing influence when they turn out to produce outcomes that the members of their coalition do not support.
Whether originalism and cost-benefit analysis will prove durable enough to survive the fracturing of their supporting coalitions—should that occur—remains an open question. But the paper’s recitation of their joint rise offers a valuable, if sobering, lesson about how legal ideas gain purchase and maintain influence in our law. The administrative state has always been a battleground for competing visions of the proper scope of government power. What Professors Masur and Posner’s paper helps to reveal is how two of the dominant ideas that have shaped the law and the functioning of the modern administrative state carry their own political baggage—baggage that (not coincidentally) contains some pretty fat wallets. But if our world is one in which legal methodology is really politics by other means, or really money in another denomination, perhaps the most important question is not which methods are right, but who is actually deciding which methods we use.
Cite as: Mila Sohoni,
Twins Separated at Birth, JOTWELL
(September 15, 2025) (reviewing Jonathan Masur & Eric Posner,
The Common Political Foundations of Originalism and Cost-Benefit Analysis, 77
Admin. L. Rev. 65 (2025)),
https://adlaw.jotwell.com/twins-separated-at-birth/.
Jul 24, 2025 Christopher Walker
In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 524 (1978), the Supreme Court famously announced that “[a]gencies are free to grant additional procedural rights [beyond those required by the Administrative Procedure Act] in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them.” In an administrative law course, we focus somewhat myopically on the second half of the statement—that courts cannot impose more procedural requirements on federal agencies than Congress has commanded by statute. But the first part of the sentence is just as important. It is in Vermont Yankee’s “white space,” as Emily Bremer and Sharon Jacobs aptly call it, that so much of the action in administrative law takes place. This is the world of internal administrative law.
Historically, internal administrative law has often been neglected in the literature, with some exceptions such as Jerry Mashaw’s majestic Bureaucratic Justice. In recent years, however, we have seen more scholarly attention, which is chronicled in Gillian Metzger and Kevin Stack’s 2017 article Internal Administrative Law. I have contributed some to this literature, trying to operationalize internal administrative law and exploring how it can constrain and empower regulatory activities outside of courts. A recent addition to the literature is well worth a read and the subject of this review: Professor Stack’s article The Internal Law of Democracy is a spectacular exploration of how internal law works in state and local governments, in the context of election administration. There is so much to like (lots) about this article, and it is a must-read for scholars of administrative law, election law, and local government law as well as political science and public administration.
In The Internal Law of Democracy, Professor Stack examines how internal administrative law has shaped election administration. After Part I of the article provides a cogent summary of the internal administrative law literature to date, Part II turns to election administration and presents three important case studies: local voting practices in the South during the Jim Crow era, the 2000 Bush-Gore presidential election recount in Florida, and the 2020 COVID-19-related mail-in ballot controversies in Pennsylvania. Through these case studies, Professor Stack effectively illustrates how internal law shapes elections. As he concludes from these case studies, “this internal law made by election officials and administrators to organize and guide their own discretion has determined who votes, how they vote, and whether their votes are counted.” (P. 1711.)
After presenting these case studies, Part III zooms out to document internal law’s status, variety, and sources in state and local election administration as well as how federal law regulates that internal law today. These state and local internal laws range from formal rules to informal guidance, and from state-mandated standards to local on-the-ground, in-the-moment decisions. At the federal and state levels, Professor Stack concludes that “the overall picture is of limited federal oversight and uneven (and often weak) state external checks on the internal law of democracy.” (P. 1689.)
Part IV—perhaps my favorite part—presents Professor Stack’s vision for internal laws governing election administration. He identifies four rule-of-law conditions that should guide a reform agenda for election administration: “internal law must be (1) consistent with external law, (2) public and accessible, (3) presumptively binding on lower-level officials, and (4) justified publicly.” (P. 1698.) He recognizes that this reform agenda is easier said than done, due to the unique circumstances of election administration. Among other things, “election administrators and workers require explicit answers in a time-sensitive and pressured environment,” and “election administration relies heavily on a unique personnel model” of “temporary workers who volunteer or serve for a nominal wage.” (P. 1692-93.) In light of these circumstances, Professor Stack concludes that “an internal law of democracy that prospectively guides the operational choices faced by those who administer elections is a necessary condition for election administration—and can contribute to the public’s perception of election fairness.” (P. 1695.) Part V concludes by addressing some obstacles and objections, including express local preemption to home rule, criminal sanctions for deviation from state election policy, partisan influence, and the potentially “existential threat” of the independent state legislature doctrine.
The Internal Law of Democracy demonstrates the value of administrative law scholars shifting their attention away from the federal bureaucracy and toward state and local government law. In that sense, it reminds me a lot of the terrific scholarship by Miriam Seifter and Maria Ponomarenko, among others. The article also shows the value of the fields of state and local government for administrative law. I wish our fields interacted more; local government law in particular has so much to offer to our field in terms of theory and framing. I hope this article sparks more cross-pollination and interaction between the fields. Administrative law would be better for it.
I feel compelled to flag for the reader that while the body of the article is a must-read, the footnotes are also well worth your time. In his typical style, Professor Stack strives to cite all of the relevant literature, giving credit where it is due and making connections that were not obvious from the prior scholarship cited. This is a real tour de force. And yet it comes as no surprise to any of us in administrative law. Professor Stack is one of the most generous and engaged scholars in the field. He has helped launch many of our academic careers and has been a valuable mentor to even more people, myself included. If there were a ranking of the number of mentions of administrative law scholars in “star footnotes”—where scholars acknowledge those who provided meaningful feedback on earlier drafts of the article—I would be shocked if Professor Stack were not at the very top of that ranking.
Most importantly, I hope scholars of election law and election administration officials themselves give this article a close read. Effective election administration is necessary for a functioning democracy. And internal administrative law is necessary for effective election administration. “Although there is not a simple cure-all to problems with elections,” as Professor Stack concludes, “an internal law that aligns with these legality values promotes clarity, consistency, and nonarbitrary election administration.” (P. 1712.)
Jun 26, 2025 Emily Bremer
Emily Hammond,
Agency Amici, 58
U.C. Davis L. Rev. 1669 (2025).
How will the recent, significant changes in administrative law doctrine affect on-the-ground administrative activities of longstanding vintage? This question blooms today in a thousand different places, offering administrative lawyers endless opportunity to give that most favored of lawyerly responses: “It depends.” In Agency Amici, an article recently published in U.C. Davis Law Review, Emily Hammond offers a rich and sophisticated analysis of the question as it relates to the age-old practice of administrative agencies filing amicus briefs in ongoing litigation between other parties. The article contributes to the literature on agency amici with empirical evaluation, in-depth case studies, and normative analysis at a moment of transition from the old regime of judicial deference under Chevron and Auer to the new regime under Loper-Bright and Kisor. The result is a rich and fascinating portrait of an established practice that sheds useful light on the possibilities for its future.
An amicus, or “friend of the court,” brief is filed in ongoing litigation by someone who, though not a party to the case, has a strong interest in the issues that will be decided. A federal administrative agency may file such a brief in a case that implicates its statutory responsibilities but does not involve judicial review of the agency’s own action. In these cases, the agency may be able to offer the court a well-informed statutory analysis, as well as practical and regulatory context that the parties to the case may not have the ability or incentive to provide.
Agency Amici begins with a literature review and a comprehensive survey of the administrative law of agency amicus practices. Agencies must have statutory authority to file amicus briefs. The article explains that it is relatively common for Congress to give agencies statutory authority to file amicus briefs in the lower courts. One might expect that such authority would be extended less often to executive branch agencies than to independent agencies. But the analysis does not corroborate that expectation. After surveying this landscape, the article evaluates the tension between these grants of litigating authority and the ever-increasingly assertion of centralized control over agency policymaking, whether through the expansion of the unitary executive theory or the rise of presidential administration. It then evaluates whether agency amicus briefs can help to expand access to justice and how they fare under common procedural expectations for the development of agency policy. Along the latter dimension, amicus briefs are not subject to the same procedural controls as other kinds of agency action, and the article does a wonderful job of exploring how this affects efficiency, expertise, and political legitimacy.
The article’s greatest contribution is its deft analysis of the issue of judicial deference to agency views at this critical moment of inflection as the Supreme Court moves administrative law into a new era. Agencies file amicus briefs in the hopes of influencing how courts interpret statutes or regulations, decide cases, and thereby develop the law. The power of an amicus brief may therefore depend on how much judicial deference it can command. The degree of available deference was potentially quite high under Auer (1997)—which the Court sharply limited in Kisor (2019)—and under Chevron (1984)—which the Court overruled in Loper-Bright (2024). In the wake of these developments, Skidmore (1944) “respect” for an agency’s persuasive and well-informed views (a standard established in a case involving an agency amicus brief!) is poised to become increasingly important.
Agency Amici does a terrific job of explaining these seismic changes in administrative law doctrine, and it offers a typology of agency amicus briefs that is well designed to suggest how amicus briefs can be effective under the new deference regime. The typology identifies a variety of situations in which agencies commonly file amicus briefs, including: (1) shared private and public enforcement responsibilities (Pp. 1714-23); (2) access to courts and hurdles to review (Pp. 1723-26); (3) preemption (Pp. 1727-30); (4) federally funded, state-administered restorative justice programs (Pp. 1730-32); and offering views on another agency’s statutory interpretation in areas of overlapping or shared statutory responsibilities. (Pp. 1732-34.) The typology is enriched and made more instructive by deep dives into individual cases in which agencies have filed amicus briefs. Each of these deep dives includes an accessible description of the case, the legal issue, the agency’s contribution qua amicus, and the court’s decision, including its reaction (if any) to the amicus brief.
The article’s typology facilitates a close analysis that pulls apart strands of legal doctrine that might otherwise be confounding, thus opening a window into how agencies and courts can continue to benefit from agency amici practice in a world of reduced judicial deference. The article concludes that “most agency amici confine themselves to matters squarely within their statutory domains.” (P. 1734.) That is, agencies use statutory authority to file amicus briefs prudently, to address important issues and to communicate views of the law and its underlying policy realities that are grounded in sound reasons and longstanding experience. Although the courts often decide cases in a manner consistent with an agency amici’s views, they rarely engage with—or even acknowledge—the amicus briefs. In fact, judicial engagement seems to be more likely when a court takes a different view of the issue. For these reasons, “how much difference [agency amici] make remains elusive.” (P. 1734.)
The article concludes with a normative analysis that offers potential lessons for both administrations and courts. As to the former, the article concludes that “it is evident that most briefs match expected presidential preferences.” (P. 1735.) This may allay concerns about the relative freedom of agency amicus practices from the formalized process of central executive control. As to the courts, the agencies’ prudent use of amicus briefs may mitigate concerns about their relative lack of procedural control, while reducing the likelihood that reduced judicial deference will meaningfully affect the usefulness of agency amicus briefs going forward. But the analysis also suggests that courts could do better. By engaging more with agency amicus briefs, courts could make their own decisions more transparent and deepen incentives for agencies to develop the kind of stable and well-reasoned positions that have the power to persuade.
Jun 2, 2025 Jodi Short
Julie E. Cohen,
Oligarchy, State, and Cryptopia, available at
SSRN. (March 10, 2025).
In Oligarchy, State, and Cryptopia, Julie Cohen lays the groundwork for re-theorizing the administrative state in the age of Trump II, DOGE (otherwise known as the Department of Government Efficiency), and their unparalleled assault on the institutions of government. Before now, generations of deregulatory politics and rhetoric have tended paradoxically to produce more rules rather than less, and they have decidedly not produced any radical restructuring of government regulatory institutions. The settled explanation from scholarship in a variety of fields is that while businesses often spout the rhetoric of deregulation, they actually want—perhaps need—regulation for reasons including competition control, market making, and firm survival and stability. The extensive and unprecedented dismantling of government institutions spearheaded by DOGE radically unsettles those understandings, which begs questions about why this time is different.
Cohen’s article begins to address those questions and, more broadly, sets the terms for future theorizing about administrative law and regulation in a cogent, meticulous, and frankly chilling account of the tech oligarchy and its relationship to, and ambitions for, state power. Cohen starts from the premise that existing theories of administrative law and regulation give too little attention to oligarchy as a phenomenon that shapes the use of state power and regulatory authority in ways that go beyond the familiar industry capture story. Based on influential research in political science, she defines oligarchy as “a particular form of concentrated power based on the accumulation of extreme material wealth and the use of such wealth to obtain systemic, inescapable advantage within a political system or community” (P. 6). Cohen argues that the principal difference between tech oligarchs and capitalist oligarchs of yore is that the former are becoming increasingly unwilling to submit to a rule-of-law system to advance and protect their dominance. Instead, tech oligarchs increasingly seek to move towards a system in which they displace the state and exercise coercive power directly—including by individual fiat.
Cohen explains how the political economy of informational capitalism enables this gambit. Her account starts with the infrastructural nature of information technology: the dominant tech platform firms do not merely provide essential products or services; they “have become essential infrastructures for an increasingly wide variety of computing, communication and control-based functions that, in turn, now underlie and infuse every conceivable domain of human and social activity” (P. 15). This powerful techno-social position provides tech oligarchs with the means to multiply their extraordinary personal wealth and to control communications about issues that concern them. Tech oligarchs have also managed to untether themselves from traditional channels of market and legal accountability. They have largely consolidated control of their firms, adapting corporate governance structures to advance their personal aims and evade market accountability mechanisms such as share price and stockholder discipline—for instance, by keeping their companies private or adopting dual-class ownership structures. They have also engaged in “flamboyant defiance” of the law (P. 18), often with impunity, in part by exploiting the states’ deep dependence on the operational and surveillance services tech platform companies provide.
Oligarchs always, predictably, use their structural advantages to amass ever greater wealth, and certainly tech oligarchs have done so through traditional means such as lucrative government contracts and strategic regulatory capture. But Cohen argues that tech oligarchs are distinct from their capitalist predecessors in their “increasingly profound disenchantment with the prevailing terms of the state-oligarch relationship” (P. 22) which expects oligarchs to surrender coercive power to a rule-of-law system administered by the state. While their capitalist predecessors settled for strategies to capture state regulatory institutions for their advantage, tech oligarchs are pursuing a much more ambitious strategy to re-structure the terms of the state-oligarch relationship entirely.
Cohen explores two key channels through which this relationship is being renegotiated: finance and public administration. In the financial domain, tech oligarchs are working to break states’ power over exchange value through cryptocurrency systems for decentralized economic exchange. In the domain of public administration, the second Trump administration has empowered tech oligarchs to attack the state from the inside through DOGE. Cohen trenchantly observes that the unprecedented and ultra vires acts of DOGE are not merely “neoliberal downsizing on steroids” (P. 28). Rather, “Musk and his team of loyal coders are laying the groundwork for a far more durable realignment in the oligarchy-state relationship” (P. 28). Specifically, Cohen describes DOGE as a vehicle to transform “the federal government and its constituent institutions and processes into forms more amenable to oligarchic direction” (P. 30). While it remains to be seen exactly how DOGE will ultimately reconfigure regulatory institutions and operations, Cohen posits that the realignment will be guided by theories influential among the tech elite that envision massive ideological and personnel purges of government employees, yielding to unencumbered control by the tech oligarchy of whatever government institutions survive.
One of Cohen’s signal contributions is to situate this account of oligarchy within a techno-futurist ideology that supplies moral justifications for tech oligarchs’ dominance and their drive to replace existing state institutions and social settlements. Many prominent tech oligarchs adhere to a philosophy known as Effective Altruism, which holds that “amassing great wealth is a necessary first step to achieving great and long-lasting social change” (P. 21). This philosophy not only tolerates but celebrates grossly unequal distributions of material resources as a “precondition to achieving long-term human betterment” (P. 21). In this epistemology, “human betterment” is achieved not through collective, democratic deliberation and institutions, but rather through the use of “cutting edge computational technologies to radically alter a wide range of human and social processes in the services of utopian goals” (P. 37). It follows that all resources should be devoted to developing such technologies, and it is wasteful to devote resources to ameliorate immediate social ills such as homelessness or to redistribute resources to populations harmed by such short-term ills. So, for instance, there is “[n]o need to impose regulatory measures to mitigate climate change; invent [artificial general intelligence] and it will solve climate change” (p. 39). And if it doesn’t, and instead climate change ravages the earth, by that time the tech oligarchs will have decamped to Mars.
This epistemology leads tech oligarchs to view predictable and historically unremarkable attempts to regulate them—for instance, through antitrust law, privacy protections, and precautionary risk regulation—not merely as inhibiting their business interests, but as “existential threats to a brightly beckoning, data-driven future” (P. 21). Unlike other corporate titans who simply resist or flout regulation, tech oligarchs “fancy themselves misunderstood idealists, devoted to improving the human condition via the inevitable forward march of technological progress” (P. 20) and they view state regulatory demands as misguided and immoral attempts to impede human progress.
This all raises serious questions about the capacity and role of administrative law in judicial challenges to the tech oligarchy’s administrative machinations. Administrative law is an outgrowth of particular social and political settlements about the relationship between state and market. How will it respond to the great unsettling sought by the tech oligarchy? Will it, too, be transformed? Will tech oligarchs be able to flout administrative law as freely as they do many other laws? If not, what is it about the qualities and context of administrative law that will save it from irrelevance?
Cohen’s account also highlights how moral theory can be used to shape and justify administration. In my article, The Moral Turn in Administrative Law, I observe a growing constellation of theories that explicitly invoke substantive moral values as the basis for administrative law and policy, cutting against the field’s tendency toward proceduralism, formalism, and technocracy. Tech-futurist ideology is a provocative entry into conversations about moral administration. In a recent analysis, my co-authors and I show that the mainstream media has paid little attention to tech oligarchs’ ideologies in coverage of tech platform regulation. At the time, we interpreted this absence of coverage as indicative of broad public disinterest in or even rejection of these ideologies, but Cohen’s article suggests that they have flourished out of the public spotlight, and they continue to motivate the behavior of powerful actors irrespective of their public appeal. By foregrounding the values underlying DOGE’s project, Cohen subjects the tech oligarchy’s moral code to the public scrutiny it deserves and invites a broader dialogue about the moral aims and imperatives of administration.
Apr 29, 2025 Wendy Wagner
Nikhil Menezes & David Pozen,
Looking for the Public in Public Law, _
U. Chi. L. Rev._ (forthcoming, 2025), available at
SSRN (Oct. 02, 2024).
If you have ever advocated for a greater “public” role in administrative law without specifying who that public actually is or how they might realistically engage, then Nikhil Menezes’ and David Pozen’s terrific new article, Looking for the Public, is a must-read. Menezes and Pozen call out our bad habits, trace the many adverse consequences that result from our imprecision, and challenge us to do better while offering concrete suggestions for how we might do so. Their analysis makes it clear that until we address the phantom public problem, well-meaning efforts to create more inclusive or public-spirited policies and processes will be missing the most critical ingredient of all—evidence that the policies or processes actually benefit a “credible public.”
Looking for the Public begins by tracing how, despite our reliance on the public as the lodestar for virtually every policy and process in administrative law, lawmakers and scholars regularly appeal to the public without providing evidence-based accounts of who the public is or how they might engage. Efforts to ground policy or accountability mechanisms in “public opinion,” the “public interest,” and “public participation” often neglect to locate these same publics, while at the same time steadfastly ignoring mounting literature that suggests the public is absent or not credibly represented.
Perhaps if there were a shared normative vision of who the public is and how they should engage, some of this imprecision might be harmless. But as Menezes and Pozen point out, there is no shared vision of public engagement. To make this point, they recount the dueling positions taken by Walter Lippmann and John Dewey and their followers. Lippmann considered public engagement to be doomed from the start given the complexity of the issues and collective action problems. He advocated instead for executive leadership and natural law constraints. (P.19). Even the more optimistic Dewey acknowledged many practical realities that undermine meaningful public engagement. He proposed in place of the undefined public various “designed activation strategies [that . . .] aim to create conditions under which effective publics might emerge.” (P.24 emphasis added).
If we appeal to an undefined “public” to guide policies and processes, serious problems are likely to follow. In the third part of Looking for the Public, Menezes and Pozen document a variety of adverse consequences, many of which are growing increasingly urgent as voters become more polarized and leadership more centralized. For example, just as Lippmann and followers predict, the “phantom” public is routinely used as a makeweight by elites to advance their own ends and goals. At the same time, processes referencing an unspecified “public” end up defaulting to the free market, providing these same elites with still more ways to torque policies in their favor.
To address these and many other hazards, Menezes and Pozen insist that, going forward, public officials and commentators should speak more clearly about which “public” they have in mind, and “appeals to the public should come with evidence or hypotheses on how the public in question can fulfill its designated function.” (P.40). To that end, they draw upon deliberative democratic theory to offer a suggestion for how we might accomplish this: by designing “credible publics” or “mini-publics” (e.g., representative panels or juries) as a substitute for the phantom public. (P.42). Institutionalizing mini-publics would provide, at least to some extent, an empirically-based approach for identifying what a representative slice of the public actually thinks or wants on a specific topic, as well as engaging the public as co-collaborators in authoring policies.
Looking for the Public is overflowing with insights and other goodies, but two contributions bear particular spotlighting. First, in their deep dive into the role of the “phantom public” over time, Menezes and Pozen discover that the public’s role in our government has steadily drifted from “author” to “monitor.” Innovations that situated the public as a collaborator in authoring policies in our democracy, such as constitutional conventions, the use of congressional petitions, criminal juries, and citizens’ assemblies, are now largely obsolete. Instead, today’s institutional processes engage the public primarily at the backend—as monitors through familiar notice and comment, opinion polls, and the like. As the authors conclude, “[t]he late twentieth-century shift from authors to monitors means that ordinary Americans today almost never get to pose, much less decide, specific questions of law or policy through formal procedures.” (P.39).
A second stand-out contribution is Menezes’ and Pozen’s pragmatic response to this problem—urging the deployment of mini-publics to begin to fill the void. Mini-publics take many forms but generally are composed of a representative subgroup of the population assembled to deliberate on topics and inform governmental processes. The authors immerse the reader in a surprisingly large theoretical and empirical literature advancing this idea and then offer specific suggestions for how mini-publics might be deployed in the future. For example, mini-publics could be assembled to resolve ambiguities in the texts of ballot initiatives so that presiding courts cannot make up an underlying public sentiment on their own and attribute their policy choices to “the people.” (P.49). Or “mini-publics” could be assembled to play an “authorial” role in helping agencies or even Congress draft agendas, ideas, and policies. (Pp. 50-51).
In advocating for a greater role for credible publics, Menezes and Pozen acknowledge there are substantial challenges ahead. In my own field of environmental law, for example, there is a long history of manipulating expert panels, which could presumably carry over to institutionalizing the use of mini-publics as well. Even first-order choices about the type of information to share with a mini-public are susceptible to bias and could have profound implications for how mini-publics think about problems. Yet these and other worries are exactly what Menezes and Pozen hope to anticipate and counteract in urging a research and reform agenda.
Looking for the Public never finds the public. As the authors point out, the public is both nowhere and everywhere. But by exposing the phantom for what it is, Menezes and Pozen challenge those of us eager for more inclusive policies and processes to design institutional structures that insist on the need for “credible publics” at the start.
Apr 1, 2025 Michael E Herz
Susan C. Morse,
Time Bars for Administrative Procedure Claims After Corner Post, 114
Calif. L. Rev. __ (forthcoming 2026), available at
SSRN (Jul. 18, 2024).
In recent terms, the Supreme Court has had its nose to the grindstone, transforming American administrative law. In a series of striking decisions, it has created the major questions doctrine, overruled Chevron and reined in Auer, shifted toward the elimination of independent agencies and a full-throated endorsement of the unitary executive theory, come close to remaking the nondelegation doctrine, reinvigorated arbitrary-and-capricious review, and opened the courthouse doors to challenges to regulations issued long ago. Most of these developments have spawned a flurry of academic commentary. The major questions doctrine in particular has created an itch it seems everyone needs to scratch. And overruling Chevron has given all those who had written about the case in the past (which is practically everyone) a chance now to write about its demise.
In the face of this tsunami, what is a poor JOTWELL reviewer to do? How to select the best from among them? It can’t be done. (Though, as Jack Beermann has written, if you want to understand the major questions doctrine you can’t go wrong by starting with Anita Krishnakumar.) But there is one exception. When it comes to Corner Post, there is a standout article. While others have been hypnotized by the shiny new objects of the MQD and Loper Bright, an undistracted Susan Morse has kept her attention focused where it has been for a couple of years. Her latest, Time Bars for Administrative Procedure Claims After Corner Post is a standout not only because, let’s be honest, there is not a lot of competition, but because it is so good.
Reading the article, one wonders why Corner Post has not received more attention. After all, its potential consequences are both significant (it could subject a large swath of regulations understood to be valid to re-examination, often under standards of judicial review more searching than those applied initially) and uncertain. Morse lays out the background, describes the decision’s significance, and argues that it should be read narrowly.
The basics are widely known, but here’s a primer. Many statutes impose specific time limits during which regulations adopted thereunder can be challenged. But absent such a restriction, the catchall statute of limitations for actions against the United States requires that the complaint be “filed within six years after the right of action first accrues.” 28 U.S.C. § 2401(a). Corner Post held that in a challenge to a regulation the right of action “accrues” not when the regulation is issued but when the challenger is first subject to it. Thus, if, as in Corner Post, the plaintiff did not exist when a regulation was promulgated, began operations seven years later, and challenged the regulation in court three years after that, the suit is timely. As to this plaintiff, the right of action only accrued when it began operating.
As Morse describes, prior to Corner Post the courts of appeals had developed a fairly clear and stable body of law. Latecomers could challenge old regulations, but (a) they did so as a defense to an enforcement action (i.e., an as-applied challenge) and (b) the challenge was limited to claims that the regulation violated a statute or the constitution (was ultra vires), not that it was procedurally defective. Corner Post indisputably changed the law regarding point (a). It allowed a facial challenge—just the sort of claim one generally sees in a pre-enforcement challenge brought immediately after a rule is promulgated—to be brought a decade after the rule was issued. The great uncertainty about Corner Post involves point (b): does its holding also apply to challenges that do not rest on an ultra vires theory? The holding of Corner Post might but does not necessarily reach that far, and a frustratingly vague footnote in the majority opinion arguably leaves open the possibility that it does not.
Here then is the current state of the law as set out in a chart Morse provides:
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Morse accepts as-applied ultra vires challenges to a regulation long after promulgation. She acknowledges a plausible constitutional argument (sounding in due process as well as separation of powers) that such review must be available to entities that did not exist at the time a regulation was promulgated. And she predicts that in two Hobbs Act cases being heard by the Supreme Court in its 2024-2025 Term, NRC v. Texas and McLaughlin Chiropractic Associates, Inc. v. McKesson Corporation, the Court will carve out an exception for ultra vires challenges tracking the Corner Post holding.
Procedural challenges are a different matter. (Except in her title, Morse sticks with “ultra vires” and “non-ultra vires” rather than “substantive” and “procedural.” Because of an allergy to law Latin, I prefer the latter terms, but when I use them I do not mean to depart from her categories. She spends several pages pinning down the difference between the two types of challenges. The trickiest edge cases involve arbitrary and capricious challenges, which can be kind of procedural (a failure of explanation) or kind of substantive (failure to consider a statutorily relevant factor).) Morse’s essential claim is that procedural challenges “accrue” when the regulation is adopted, period.
Morse develops three arguments for a time-bar on procedural claims. First, in light of various practical and conceptual problems, Congress simply could not have intended down-stream procedural review to be available. For one thing, allowing a court to retroactively set aside a decades-old regulation on the ground that the agency violated procedural requirements that courts developed after the rulemaking in question is unfair if not nonsensical. In addition, procedural harms are generally conceptualized as occurring at a specific moment in time; they do not persist into the future.
Second, powerful reliance interests, which increase over time, argue against allowing challenges to longstanding regulations. Of course, reliance interests argue just as powerfully against challenges on substantive grounds. Morse does not say so explicitly, but the necessary implication is that the justifications for such review are more substantial than for review of procedural claims – sufficiently so as to outweigh reliance interests.
Third, “it is unbearably costly to evaluate and correct long-ago rulemaking process.” Stale evidence, the challenges judges would face evaluating cold records from long ago and out of context, and, one might add to Morse’s list, the likelihood that none of the advocates will have been present at the creation, create such a risk of error that the game is not worth the candle.
The article’s final section addresses where to go from here. The simplest alternative, of course, is to read Corner Post and its confounding footnote eight to apply only to substantive claims. But if that does not happen? At a minimum, Morse says, if courts are to find a procedural error long after a rule’s promulgation, they should remand without vacating, which would minimize the disruption and allow agencies to cure the defect. Alternatively, and far preferable in her view, the courts or Congress could directly bar distant procedural claims.
The judicial route could rely on standing doctrine. One possibility is to find that a challenger who did not even exist at the time of an alleged procedural error did not suffer a (procedural) injury in fact. Morse rejects this theory, because courts generally find standing to make procedural claims rests on the harm from the final action itself, not the procedural error. More promising, in her view, would be to deny standing because the challenger is not within the zone of interests of the procedural requirements relied on. (I will say I am not persuaded that the latter argument succeeds where the first fails; if the downstream harm from the regulation is an injury in fact, then it would seem also that those suffering such an injury are within the zone of interests protected by the procedural requirements.)
The cleanest resolution, of course, would be new legislation. Morse offers a tidy proposal: an amendment to the APA, limited to arbitrary-and-capricious or procedural challenges, that tracks the statute of limitations in the Hobbs Act, though with a 6-year rather than a 60-day limit. The success of this strategy will depend on just what the Court does this term with the two Hobbs Act cases mentioned above. Morse predicts, with a good deal of (no doubt well-founded) confidence, that the Court will carve out an ultra vires exception, but only an ultra vires exception, to the flat 60-day limit. If it does so, then identical new language in the APA would presumably be read the same way: facial and as applied substantive challenges could be brought a century after the regulation was promulgated if the challenger had first been harmed in the last six years, but procedural challenges could only be brought within some specified period (she suggests also the “tried and true” six years) after the regulation is promulgated.
Seems pretty sensible, no?
Feb 26, 2025 Mila Sohoni
Since the Supreme Court overturned Chevron in Loper Bright, the administrative law community has been consumed with the question of what will come next—and how much it will differ from what has gone before. Some predict that deference by courts to agencies will persist, albeit in renamed or reconceptualized form. Some worry that the combination of Loper Bright with other cases decided last term will empower courts to kneecap regulatory schemes, both old and new. Others posit that agencies will turn to regulatory tools that bypass whatever pitfalls may emerge as a consequence of Loper Bright and its brethren.
As scholars and policymakers grappled with the past term’s implications for federal agency power, Professor Adam Zimmerman’s Ghostwriting Federalism arrived to remind us that the reach of administrative influence extends far beyond the realms of formal rulemaking and judicial deference. This rich and thought-provoking new article is about much more than the post-Loper Bright world. The paper points out a great number of routes — fifty, to be precise — that agencies might use to promote policy objectives even in a world of federal courts inhospitable to federal regulatory power.
In each of the fifty statehouses, federal regulators have found cooperative partners capable of advancing regulatory goals that federal agencies could not accomplish on their own. Through these federal agency-statehouse collaborations, Zimmerman explains, “federal agencies actually influence, craft, and occasionally write state law” (P. 1810). Even if Loper Bright does meaningfully constrain federal agencies’ ability to interpret federal statutes, Zimmerman’s article shows that federal policies may yet be implemented by state sovereigns in ways that fall outside the purview of direct control by federal courts, Congress, or the White House.
This is an often overlooked but vital aspect of administrative policymaking with significant implications for both administrative law and federalism in the post-Chevron era. How does this ghostwriting happen? As is typical of Professor Zimmerman’s work, this article grounds its discussion of theory and doctrine upon a painstakingly assembled empirical foundation. After conducting extensive interviews with agency officials from over a dozen agencies and performing original archival research, Professor Zimmerman identifies five key mechanisms through which federal agencies shape state legislation: agenda-setting; expertise-lending; institution-building; policy coordination; and federal funding. Using these tools, agencies exercise “soft power” to achieve regulatory goals without having to formally conduct rulemaking.
Professor Zimmerman is not totally enamored of these collaborations — he aims to examine and document this phenomenon and to evaluate its promises and perils, not to sing its praises. He teases out two particularly interesting implications, one for administrative law and the other for federalism. As for administrative law, these federal agency-statehouse collaborations fall into a no-man’s-land where neither the APA’s procedural restrictions nor judicial review can get much purchase: “No formal legislative, executive, or judicial oversight applies to the soft power and influence that federal agencies exercise over state legislation” (P. 1859).
On the mainstream view that such checks are essential safeguards of administrative legitimacy, this lacuna will seem troubling. Professor Zimmerman points out, though, that several agencies have developed their own internal protocols “to hear from stakeholders, promote transparency, and ensure more formal oversight inside and outside the agency, which others could easily adopt” (P. 1866). And rather than checking by Congress and in federal courts, here it is state legislatures and state courts that ultimately will most directly constrain federal agency efforts to move state law in a preferred direction.
Turning next to federalism, Professor Zimmerman makes the pleasingly counterintuitive observation that federal agencies working hand-in-hand with states may promote, rather than undermine, state sovereignty. How can this be? The reason, he explains, is that agencies may help resource-strapped states to develop technical expertise and pursue policy innovation while also helping them to avoid capture and lobbyist influence. (P. 1881.) For example, agencies have provided states with legislation adopted by other states and shared their evaluations of how that legislation has performed, thus supplying alternatives to the model laws promoted by lobbyists and organized interest groups. This can be a great help to state legislatures, particularly in states in which lawmakers are paid little and have few policymaking staff. (P. 1871). As Professor Zimmerman concludes, “in our increasingly intertwined federal and state system of government, . . . it almost no longer makes sense to debate whether federalism serves national interests or state interests” (P. 1883).
This is a time of tumult and transition — and not just because of Loper Bright. A new presidential administration has returned to Washington. Professor Zimmerman’s article stresses that it is not just the levers of federal regulation that are in play today but state lawmaking as well: “Presidential control . . . does not just mean more power over federal law. Whoever commands more control over federal agencies can assume a greater role inside state legislative agendas as well” (P. 1865). State legislative changes may endure on the books well after a given President leaves office. At this pivotal moment for the administrative state, Professor Zimmerman’s fascinating article offers a must-read account of how the future of federal regulatory policy will be shaped and realized not just in Washington, but in the fifty state capitals as well.
