Dear Friends,
The Gray Center continues to plan for a busy year ahead. We’ve already had some big news in the last few months, and this month there’s more. First, please save the dates for two important programs.
On October 21, the Center will co-host a daylong conference on “Justice Thomas’s Thirty-Year Legacy on the Court.” This program is a joint effort with the Meese Center for Legal and Judicial Studies at the Heritage Foundation, which also will be the site of the event.
And on September 17, the Center will host an afternoon conference in honor of the late Judge Stephen Williams, in Washington, D.C. We’ll hear presentations on Judge Williams’s legacy in constitutional law, administrative law, and much more, based on newly written papers from a great collection of scholars: Professors Michael Greve (Scalia Law), James Huffman (Lewis & Clark), Thomas Merrill (Columbia), and Stephen Sachs (Harvard), as well as Judge Williams’s recent clerk Nathaniel Zelinsky (now at Hogan Lovells), and Ambassador C. Boyden Gray. Finally, Judge Douglas Ginsburg will offer keynote remarks on his late colleague and friend. Details for both of these events are coming soon to your inboxes.
With these events and several others already in the works, we’re keeping busy this summer. On August 3, for example, our new Co-Executive Director Jenn Mascott will testify on executive privilege before the Senate Judiciary Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights.
In addition, our team continues to grow. This week, the Gray Center welcomed David Wu, our new Director of Operations. Three governors in three states have appointed him to senior roles—including Governor Bruce Rauner, who appointed David to be the State of Illinois’s acting Chief Operating Officer. Most recently, he served as the U.S. Department of Agriculture’s Acting Assistant Secretary for Administration. He has also worked in the private sector in finance, journalism, and start-ups in the United States and overseas. We’re so glad that he’s joined our team.
And there’s more. The Center is creating a Separation of Powers Clinic, to give students an opportunity to study and participate in Supreme Court and appellate litigation involving constitutional issues arising from the administrative state. And to direct the clinic, we’re searching for someone to be our first Director of Academic & Clinical Programs — a part-time position for an experienced litigator. The job posting is here; please apply by August 18.
Finally, we’re expanding our communications team by hiring a Communications Assistant. To keep growing and improving our outreach to policymakers, academics, journalists, and other audiences, we need someone great. If you’re interested in starting a career in law and policy, or if you know someone who is, then please check out the job posting before August 13.
All the best,
Adam White and Jennifer Mascott
Co-Executive Directors
The C. Boyden Gray Center for the Study of the Administrative State
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Center of Activity: Upcoming Events
Save the Date for our Fall 2021 Events
Registration will be opening soon for the following events. In the meantime, we hope you'll save the date and plan to join us!
Sept. 17: Memorial Symposium: Judge Stephen F. Williams's Legacy in Constitutional and Administrative Law
Sept. 24: Administrative Law in the Supreme Court and Circuits: Previewing the Year Ahead (Webinar)
Oct. 1: Conference on Presidential Administration in a Polarized Era
Oct. 21: Conference on Justice Thomas's Thirty-Year Legacy on the Court
If you don't already receive our email invitations in your inbox, click below to sign up so you'll be notified once registration goes live for each event.
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"Gray Matters":
Listen to our Most Recent Podcast Episodes
In his confirmation hearing, Chief Justice John Roberts famously analogized his role to that of an umpire, “to call balls and strikes, and not to pitch or bat.” Dean Ronald Cass argues in a new paper that in three notable decisions of the U.S. Supreme Court—Kisor v. Wilkie, Department of Commerce v. New York, and Department of Homeland Security v. Regents of University of California—Roberts also seems to be concerned by the way the crowd will perceive the call. In this episode of the Gray Matters podcast, he joins Co-Executive Director Adam White to discuss his paper. Listen to the podcast episode here.
If we were to redesign the Administrative Procedure Act for today’s version of the administrative state, what would it be?
To mark the 75th anniversary of the APA, on June 11, 2021, the Gray Center hosted a conference at the Historic Decatur House in DC for an afternoon of conversations on this and related questions. The first panel session, entitled “Creation Stories: What Did the 79th Congress Mean to Accomplish?” focused on papers by four George Mason Law Review Symposium Issue authors: Michael S. Greve, Jeremy A. Rabkin, Christopher J. Walker, and Paul R. Verkuil. You can listen to the panel's audio as a podcast here.
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Working Paper Series:
Read the Latest
The following papers were workshopped at a Gray Center roundtable titled “Administrative Law in the States: Laboratories of Democracy”
In this piece that follows his 50-state survey of state deference doctrines, Daniel Ortner catalogues the rationales that state courts use to justify their jurisprudence on deference, and looks to see what arguments and rationales tend to favor or disfavor deference. He finds that in many instances, the state level arguments about deference parallel those occurring in federal courts.
To provide more evidence about the possible effects of the nondelegation doctrine on the functioning of the federal government, Joseph Postell here looks to the states. He argues that even where the nondelegation doctrine is on the books, it is rarely used to invalidate statutes, and that many states that seem to have a nondelegation doctrine do not have one at all.
The following papers were workshopped at a Gray Center roundtable convened this past spring
In this article, Daniel Shapiro argues that the “place for politics” alluded to in State Farm is consistent with and mandated by the constitutional vesting of executive power in a politically accountable President, and that courts should interpret the arbitrary and capricious standard in such a way as to affirm, rather than undermine, the President’s control over agency decision-making.
By applying an active learning convolutional neural network to congressional bill texts, Joshua Lerner and Gregory Spell classify sections of legislation by their relation to delegations by Congress to administrative agencies. The dataset they develop is used to study how the legislative process results in delegations of power to the executive branch. Supplemental information for this paper is available here.
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Staff Highlights
Welcome to David Wu! This month, David joined us as the first Director of Operations for the Gray Center. Prior to this, he was appointed to senior roles by three governors in three states, a mayor, and the President, including acting as Chief Operating Officer for the state of Illinois and as Acting Assistant Secretary for Administration for the United States Department of Agriculture. He also has worked in the private sector in finance, journalism, and start-ups in the United States and overseas. He has degrees from Wesleyan University, the University of Wisconsin, and Harvard University. We are thrilled to have David onboard.
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Distinguished Work:
Updates on our
Advisory Council,
Affiliated Faculty, and
Distinguished Senior Fellows
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Gray Center Affiliated Faculty Member Prof. Joshua Wright (right), recently a commissioner of the Federal Trade Commission and now Executive Director of Scalia Law’s Global Antitrust Institute, warns his former agency in the Wall Street Journal that its recent flurry of activity under new leadership is “indicative of a regulatory overreach that will end with the FTC’s wings melting in the courts.”
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Gray Center Advisory Council Member Jonathan Adler has a post in The Volokh Conspiracy on the Biden administration's decision to make judicial nominations a priority.
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What does the Congressional Review Act actually prohibit? The Heritage Foundation’s Paul Larkin, a Gray Center Advisory Council Member, explores this difficult question in a thorough new article for the Yale Law & Policy Review.
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In RealClearEducation, Advisory Council Member R. Shep Melnick and his co-author Peter H. Schuck criticize Biden's decision to nominate Catherine Llamon to lead the Education Department's Office for Civil Rights.
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Gray Center Affiliated Faculty Member J.W. Verret argues in The Hill that the ban on felon participation in the securities markets ought to be ended.
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In The Washington Post, Gray Center Affiliated Faculty Member Dean Mark Rozell takes a look at the difficult pivot that Virginia Republican gubernatorial nominee Glenn Youngkin must make.
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"Summary Judgment"
Past Gray Center Scholarship
& Today's News
On Friday, July 9, President Biden signed a sweeping executive order with the stated aim of increasing competition within the nation's economy and combatting excessive market concentration in major industries. "We are now 40 years into the experiment of letting giant corporations accumulate more and more power," explained Biden. "And what have we gotten from it? Less growth, weakened investment, fewer small businesses ... I believe the experiment failed."
The order includes 72 provisions relating to disparate sectors of the economy. For example, the order calls on the Federal Communications Commission to reinstate net neutrality rules for broadband providers. Another provision calls on the Agriculture Department to prevent meatpacking companies from underpaying chicken farmers. The order also takes aim at noncompete agreements, urging the Federal Trade Commission to make rules barring or limiting them.
The executive order builds on one that the Obama administration issued in 2016, encouraging agencies to consider competition in their decisions and rulemaking. Few agencies followed through however, and those that did saw their actions largely overturned by the next administration.
In The New York Times, Nelson Lichtenstein hailed the order as one which returns the U.S. to the great antimonopoly tradition that has animated social and economic reform almost since the nation's founding. However, the order also drew criticism from others. In The Hill, Daniel Lyons argued that many of the order's private sector reforms reflect a flawed conception of competition. The Gray Center’s own Co-Executive Director, Adam White, told the Wall Street Journal that further efforts by the White House to explicitly rope independent agencies like the FTC into the executive branch’s policymaking agenda “could fundamentally transform those agencies, trying to align them with White House’s sweeping rule making” agenda.
Last week, the White House also announced that Biden would nominate Jonathan Kanter, a prominent critic of Big Tech companies, to be head of the Justice Department's antitrust division. It was the latest sign that the administration is preparing a broad crackdown on technology companies.
The Gray Center recently hosted two webinars on antitrust and technology:
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In one, FTC Commissioner Noah Phillips discussed how the FTC is navigating the challenge of regulating new technologies.
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In another, three experts - Loully Saney, Alec Stapp, and Ted Ullyot - previewed the Biden administration's plans for tech and antitrust policy.
Finally, take a look at a paper by Adam White on executive orders as lawful limits on agency policymaking discretion, as well as his long essay on the political environment surrounding big tech companies, titled “Google.gov.”
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"Notice and Comment"
Things Worth Reading
Oh where are you, OIRA? President Biden still has not nominated someone to be his first OIRA Administrator. Maybe he is waiting to promote its interim leader, Sharon Block, to the top chair. Or maybe he’ll surprise us with someone else. Either way, read Bloomberg Law’s recent story, “Biden Without Rules Chief Aims to Rethink How Business Competes.”
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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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3301 Fairfax Drive
Arlington, VA 22201
703.993.9556
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