Dear Friends,
Happy new year—specifically, a year that marks three major anniversaries in administrative law.
First, February will bring the fortieth anniversary of the White House’s Office of Informational and Regulatory Affairs, which President Reagan created with Executive Order 12,291. For four decades, it has been a main tool for presidential management of the administrative state—and a main target of criticism. This year could be a transformational year for OIRA, as President Biden issued a memorandum, on his first day in office, inviting major reforms to the current OIRA framework. It will be interesting to see what his agencies and White House ultimately produce, but perhaps even more interesting will be the longer term effects: as President Biden follows President Trump’s example of significant experimentation and reform of White House regulatory oversight, I suspect future administrations will feel even freer to experiment.
The year’s second milestone comes in June: the twentieth anniversary of then-Professor Elena Kagan’s landmark article, “Presidential Administration.” I suspect the anniversary will spark no shortage of commentary looking back at Kagan’s article, and looking ahead to how we should understand presidential administration in our own time. The Gray Center will be contributing to that scholarly inquiry with an academic workshop in late spring, and a public conference in early Autumn. We are particularly keen to understand what “presidential administration” means in era of profound political polarization.
Finally, June 11 will be the seventy-fifth anniversary of the Administrative Procedure Act. Given how significant the APA is in modern government, and how much the administrative state has grown and changed since 1946, the Gray Center is partnering with the George Mason Law Review to produce an entire symposium issue dedicated to the APA’s anniversary. Ten leading scholars have written essays on a wide range of questions—from what Congress thought it was accomplishing in 1946, to what reforms might accomplish in our own time. The Law Review will publish the final versions of the papers later this year, but to help spur discussion we already have posted near-final drafts of the papers in our Working Papers Series.
All of these anniversaries are a time not just to look back, but also look forward. In the arc of American history, with centuries already behind us and many more ahead of us, a 40- or even 75-year old institution is very young and ripe for reform. As President Biden starts the year with a call to substantially reform OIRA, let’s approach all of administrative law with a similar reform-minded spirit.
All the best,
Adam White
Executive Director
The C. Boyden Gray Center for the Study of the Administrative State
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Center of Activity: Upcoming Events
The Gray Center is 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 for the next event in the series:
On Thursday, February 11 from 1:00 to 2:30 p.m. ET, we're hosting a webinar on “The Future of Tech Policy in the Biden Administration.” Register Now to join us.
Additional webinars in this series to be announced, tentatively planned for late February and March.
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Working Papers: Read the Latest
The following papers are preliminary drafts from a symposium issue on the 75th anniversary of the APA being produced in collaboration with the George Mason Law Review, slated for publication this spring.
This paper looks at the history of rulemaking, from its origins as an occasional tool in guiding the executive branch to its current place at the center of the regulatory apparatus. The author suggests that the rulemaking authority should be returned to a form that is more consistent both with what the APA’s creators had in mind and with the Constitution.
To cure the constitutional deficiencies in the "appellate review" model of agency decision making, and to further protect individual rights, Professor Greve proposes a system like the German administrative court system, which has established fully independent and fully constitutional administrative courts.
In this paper, Professor Kovacs writes on the history that led up to the APA, with particular focus on administrative reform efforts during the presidency of Franklin Roosevelt up to the signing of the APA by President Truman. The paper argues that anti-authoritarian concerns shaped the APA but that the superstatute has failed to halt the accumulation of power in the federal executive branch.
To better understand the current flaws in agency adjudication, Professor Nielson looks at three key events from the 1940s: the sloppiness of the Seminole Rock decision and the confusion it caused, the lack of specificity in the APA on the topic of agency adjudication, and finally the aggressive stance taken in Chenery II.
Professor Pierce writes on the ways in which the APA has left the process of agency adjudication in worse condition than it was in 1946. The paper traces the history of agency adjudication from the 1930s through the present day, and ends with suggested reforms that could help agency adjudication function properly going forward.
Professor Postell writes 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.
This paper revisits the debates that led up to the signing of the APA, with a particular focus on correcting misconceptions surrounding much of the scholarship on these debates. Professor Rabkin takes a look at the historical record and argues that, despite the conventional wisdom to the contrary, that the APA was not a compromise bill between supporters and critics of the New Deal.
In this article, Professor Shapiro writes on the challenges inherent in achieving regulatory reform, whether pursued by the legislative branch or executive branch. The paper analyzes the failures of Congress to enact meaningful reform, even in conditions that would seem to support it. It also considers the history of Executive Order 12866, and how it allows for temporary changes to be reversed.
In this article, the author writes on several colorful figures with particular importance to the passage and subsequent debates of the APA: Walter Gelhorn, Kenneth Culp Davis, Roscoe Pound, and Carl McFarland, among others. Based on these reflections, the paper also argues that the APA’s historical context suggests that it is not quite the superstatute that many make it out to be.
In this paper, Professor Walker offers a succinct annotation of the APA, seeking to reconcile the statutory text of the APA as written with how the text now exists in judicial interpretations and regulatory practice. This literature review shows the various ways in which the life of the APA has departed from its text, with the hope of demonstrating areas for future scholarship and reform.
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Now Streaming: Recent Event Videos
Catch up on video recordings of our latest events:
On January 12, 2021, the Gray Center hosted a webinar to discuss the way the Biden administration might structure its frameworks for regulatory oversight, what old and new tools it may keep, and what new innovations it might deliver. This virtual event featured comments from Michael Livermore of the University of Virginia School of Law, Jennifer Nou of the University of Chicago Law School, and Stuart Shapiro of the Rutgers University Bloustein School of Planning and Public Policy. Watch the event video here. Listen to the event as a podcast here.
On January 14, 2021, the Gray Center hosted a webinar to examine climate change and other issues of energy and environmental policy that the Biden administration will be handling. The discussion featured Jonathan Adler of Case Western Reserve University School of Law, Gene Grace of American Clean Power, and Lisa Heinzerling of the Georgetown University Law Center. It looked at topics such as what new legislative and regulatory initiatives we should expect, what challenges they will confront, and the administration's prospects for success. You can see the event video here, or listen to the event as a podcast here.
Both of these pre-inauguration webinars proved to be very timely, given that President Biden signed major presidential memoranda and executive orders on OIRA and climate policy in the days immediately following his inauguration, reflecting many of the issues we previewed in the webinars.
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Now Published: See Where the Latest Gray Center Scholarship Has Appeared
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Staff Highlights
Get to Know Adam White! - If you’re familiar with the Gray Center, then you’re probably already familiar with its Executive Director, Adam White. But here’s a little bit more information beyond his professional bio:
Adam was born and raised in Dubuque, Iowa. (If you’ve seen the movie “Field of Dreams,” then you’ve seen where he’s from. In fact, his father’s family farmed nearby, from the 1850s to the 1970s.) While studying economics at the University of Iowa, he applied for a White House internship—and, to his amazement, wound up interning in the West Wing during the spring of 1999, answering phones and fetching lunch for President Clinton’s political advisor.
Returning to Iowa to finish school, he wrote for the college paper—where he soon met his future wife, Liz. They now have four daughters, a son, and two dogs, and they live in a quiet little creekside spot in western Loudoun County, Virginia. His main hobby is smoking meats, especially brisket. The highlights of their family’s year are the road trips back to Iowa and northern Wisconsin to spend a few weeks with family.
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Distinguished Work: Updates on our Advisory Council, Affiliated Faculty, and Distinguished Senior Fellows
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In the Wall Street Journal, Gray Center Advisory Council Member and Distinguished Senior Fellow, Christopher DeMuth (right), explained how the Electoral College saved the election.
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Gray Center Affiliated Faculty Member, Schar School Dean Mark Rozell, argued in the Washington Post that Virginia's success or failure at distributing the Covid-19 vaccine will play an important role in the state's upcoming election.
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Several Gray Center Advisory Council members have provided their own analysis on what to look out for in the admin law world under President Joe Biden's administration. Professor Andrew Rudalevige appeared on Maine Public Radio, alongside the Washington Post's Karen Tumulty, to discuss the challenges that face the Biden administration. Professor David Schoenbrod wrote an appeal to the new administration on the topic of regulatory reforms that would require major regulations to be approved by Congress. Finally, Professor Richard Pierce, Jr. wrote in Notice & Comment on "midnight rules" passed by the outgoing Trump administration and recommended that the best use of the new administration's time and resources would be to allow these rules to fall in the courts after they face likely successful challenges.
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The Administrative Law Section of the ABA, under the leadership of Gray Center Advisory Council Member and ABA Ad Law Chair Christopher Walker, has launched a YouTube channel. You can subscribe here to find new programming from the ABA Ad Law section in your YouTube feed - several videos from 2020 events are already available to view (and while you are there, consider subscribing to the Gray Center YouTube channel as well!).
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"Summary Judgment"
Past Gray Center Scholarship & Today's News
Joe Biden's inauguration as president and the swearing in of the 117th Congress has again put the spotlight on the relationship between the first two branches.
The new Congress quickly will need to decide whether to invoke the Congressional Review Act (CRA) to repeal regulations promulgated by agencies in the final months of the Trump Administration. As the George Washington University’s Regulatory Studies Center explains, Congress can invoke the CRA to nullify rules promulgated during the "lookback period" since approximately August 21, 2020. To see how the CRA was used by Congress at the beginning of the Trump era, check out the Brookings Institution’s Deregulatory Tracker. And to see how the CRA embodies a particular view of congressional power, see Philip Wallach’s recent working paper on Congress since the 1980s.
Harvard’s Noah Feldman writes that “now is the time for Congress to stand up for its rights as a coequal branch of government.” There is no shortage of explanations why Congress ever stopped acting like a coequal branch of government. When then-Professor Neomi Rao was founding the Gray Center, she wrote about Congress’s constitutional importance, arguing that it "provides a unique form of accountability for ascertaining and pursuing the public good, preserving the rule of law, and protecting individual liberty." More recently, Abbe Gluck and Jesse Cross wrote a Gray Center working paper introducing the concept of "the congressional bureaucracy," explaining how it safeguards the legislative process from executive encroachment.
Find other papers from our two conferences on Congress and the administrative state in our compendium of working papers.
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"Notice and Comment"
Things Worth Reading
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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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