Agency delay has become a chronic issue in administrative law. As Congress increasingly relies on reducing appropriations to implement its agenda, agencies have shouldered the conflicting burdens of meeting preexisting statutory deadlines for agency action, while also adhering to their newly reduced budgets. The result has been delayed agency action across a broad range of policy areas, such as environmental protection, health care, and economic...
Administrative Law
Commentators and policymakers frequently propose new government agencies in response to novel or intractable problems. New agencies can refocus public attention on the problems they regulate. They can attract new talent and bypass calcified or captured channels. But they are also costly, and there is no guarantee that they will be more successful than their predecessors.
This Article examines agency genesis at the state level. In the process,...
In the 1951 case United States ex rel. Touhy v. Ragen, the Supreme Court determined that courts can’t hold federal agency officials in contempt for refusing to comply with nonparty subpoenas if they do so pursuant to valid agency regulations. Though the Court suggested that litigants could still challenge these noncompliance decisions, it didn’t flesh out what that process would look like. Following Touhy, federal...
This Article refutes the claim that the Constitution was originally understood to contain a nondelegation doctrine. The Founding generation didn’t share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power—let alone by empowering the judiciary to police legalized...
Over the coming decades, experts estimate that twenty-five percent of all plant and animal species may go extinct. Climate change directly contributes to species extinction through ecosystem shift, and accelerates other drivers of extinction such as destruction of habitat and pollution. The Endangered Species Act is the only legal tool in the United States to directly protect against the threat of species extinction, and critical...
Seven words stand between the President and the heads of over a dozen “independent agencies”: inefficiency, neglect of duty, and malfeasance in office (INM). The President can remove the heads of these agencies for INM and only INM. But neither Congress nor the courts have defined INM and hence the extent of agency independence. Stepping into this void, some proponents of presidential power argue...
On February 14, 2019, hundreds of thousands of text messages were ensnared in a defective communications server—only to be released months later. By the time these messages reached their recipients, their worlds had changed: Heartfelt valentines arrived from loves now lost; other late-arriving messages seemed to come from the ghosts of the recently passed. It could have been worse. Text messages help to enable a wide variety of critical applications,...
For twenty-five years, the Federal Trade Commission (FTC) has brought enforcement actions against companies for data breaches using its statutory authority under Section 5 of the FTC Act to police “unfair or deceptive acts or practices.” While the Commission originally brought cases under the “deceptive” prong of Section 5, more recent cases have been brought under the vague “unfairness” prong. These cases allege that a company that...
Twentieth-century American constitutional, administrative, and corporate law were often contests over legal liberalism. We more or less accepted the basic liberal premise of separating the public from the private—and then battled over the relative size and power of the State versus the Market. At times, the State had the upper hand, and regulatory and welfare programs proliferated. At other moments, the Market struck back, forcing the State...
The 2010s have been a momentous decade for Medicaid. With enrollment of over seventy-two million people (19% of the country’s population), Medicaid is the nation’s largest public health insurance program, and it is the primary or sole source of health insurance for vulnerable groups such as low-income children and pregnant women, adults with disabilities, and […]