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Dear Friends,
It has been a busy month for the Gray Center.
On June 11, we hosted our first in-person event in over a year: a conference on the 75th anniversary of the Administrative Procedure Act. The event marked the release of the George Mason Law Review’s third annual Administrative Law Symposium Issue, with nearly a dozen major essays on the past, present, and future of administrative law and remarks by a number of prominent administrative law scholars and experts, including Paul Verkuil, former Chairman of the Administrative Conference of the United States (ACUS), Ron Cass, current ACUS Council member, and Professor Chris Walker, Chairman of the Administrative Law Section of the ABA. We appreciate the participation of everyone who joined us and look forward to many more in-person events this coming academic year.
Earlier this month, we also hosted a “Presidential Administration and Political Polarization” Research Roundtable over Zoom. Seventeen accomplished scholars from law schools across the country joined us for four days of discussion. The following working papers were presented and discussed:
  • Kevin Stack on partisan administration;
  • Kathryn Kovacs with an article reflecting on two decades of practice since the publication of Justice Kagan’s landmark article “Presidential Administration”;
  • Bijal Shah on the impact of strong presidential administration on agency efforts to faithfully execute law;
  • Brian D. Feinstein and Abby Wood on the procedural and policy consequences of slack in the principal-agency relationship between presidential appointees and civil servants;
  • Lev Menand tracing the history of presidential administration from the Reagan years;
  • Zach Price on executive enforcement discretion and federal-state systems embodying executive independence versus accountability;
  • Michael Rappaport and John McGinnis on presidential polarization and the decline of politics characterized by legislative compromise.
The final drafts will be released this coming academic year.
Then, stay tuned for more details about our autumn events, such as a conference co-hosted by the Heritage Foundation and Gray Center this coming October to commemorate the thirty-year anniversary of Justice Clarence Thomas’s confirmation to the Supreme Court. The daylong event will include multiple panel discussions with legal experts and scholars on key aspects of Justice Thomas’s jurisprudence and its impact on American law over the past three decades. 

Throughout July and August, during our summer break from conferences, keep on the lookout for several new Gray Center podcasts and Center staffing news.

Jennifer Mascott and Adam White
Co-Executive Directors
The C. Boyden Gray Center for the Study of the Administrative State
Spotlight on the Arthrex Decision:
Gray Center-Related Citations
On June 21, the Supreme Court issued its decision in United States v. Arthrex. The Court held that aspects of the adjudication regime within the Patent Trial and Appeals Board (PTAB) are unconstitutional because the relevant statutory scheme vests certain final decision-making authority in administrative patent judges who are constitutional officers not appointed by the President with Senate consent. Although the Court decided the merits of the case in a 5-4 decision, the remedy was supported by seven Justices. The Court provided that limitations on the U.S. Patent and Trademark Office Director's review of PTAB decisions are unenforceable, thereby effectively enabling the Director to render final decisions through review of PTAB opinions, under the Director's general statutory authority to carry out all patent office functions, see 35 U.S.C. section 3(a).

In addition to presenting a relatively fractured Supreme Court decision, the opinions in Arthrex also cite to academic work supported by the Gray Center. Both Chief Justice Roberts, writing for the Court, and Justice Gorsuch cite to The New World of Agency Adjudication by Christopher J. Walker (OSU) and Melissa F. Wasserman (UT Austin). Justice Gorsuch also cites Appointments and Illegal Adjudication: The American Invents Act Through a Constitutional Lens by Gary Lawson (BU). Both papers were presented at a 2017 Gray Center conference, co-hosted by Scalia Law School's Center for the Protection of Intellectual Property, entitled, Perspectives on the PTAB: The New Role of the Administrative State in the Innovation Economy. You can read the other papers from that conference here, and you can also read Professor Walker’s analysis of the Arthrex decision here.

Finally, our own Jennifer Mascott's article, Who Are “Officers of the United States”?, was cited twice in Arthrex in the dissenting opinion. Professor Mascott’s academic work on the Appointments Clause has been cited widely, including multiple times by the Supreme Court, as constitutional questions surrounding federal adjudicators continue to be frequently litigated.
Center of Activity: Upcoming Events

Save the Date for our Fall 2021 Events!

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 Commemorating 30 Years of Justice Thomas's Jurisprudence, Co-Hosted with the Heritage Foundation

If you don't already receive them, click below to sign up to get our event invitations in your email inbox once registration goes live for each event.
Now Streaming: Recent Event Videos

Catch up by watching the videos from our latest event:

On June 11, 1946, President Truman signed the Administrative Procedure Act into law, and it was intended to be “a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated in one way or another by agencies of the Federal Government,” according to its lead sponsor in the Senate. If we were to redesign the APA for today’s version of the administrative state, what would it be? During this event, hosted on June 11, the Gray Center gathered many of the George Mason Law Review Symposium Issue authors together at the Historic Decatur House in DC for an afternoon of conversations on this and related questions.

Panel 1 focused on "Creation Stories: What Did the 79th Congress Mean to Accomplish?" - Watch it here >>

Panel 2 looked at "The Life of the Law: What Has Happened Since 1946?" - Watch it here >>

Working Paper Series: Read the Latest

The following paper was workshopped at a Gray Center roundtable titled “Delegations and Nondelegation after Gundy"

Considering the divided response among commentators at the prospect of the Supreme Court embracing the intelligible principle standard, Kristin Hickman offers some perspective that things are neither as great nor as dire as they may seem. Her article argues that not even the anticipated change in the nondelegation doctrine would seriously disrupt the deep roots that rulemaking authority and executive discretion have in American law.
Now Published: See Where Gray Center Scholarship Has Appeared Recently

The Minor Questions Doctrine by Aaron L. Nielson, 169 U. Pa. L. Rev. 1181 (2021)

The Federal Reserve and the 2020 Economic and Financial Crisis by Lev Menand, 26. Stan. J.L. Bus. & Fin. 295 (2021)

Chevron’s Asylum: Judicial Deference in Refugee Cases by Michael Kagan, 58 Hous. L. Rev. 1119 (2021)

Judicial Administration by Bijal Shah, 11 U.C. Irvine L. Rev. 1119 (2021)
Distinguished Work:
Updates on our Advisory Council, Affiliated Faculty,
and Distinguished Senior Fellows

  • In a new ACUS study, Gray Center Advisory Council Member Christopher J. Walker (right) and co-author Matthew Wiener comprehensively examine agency appellate systems.

  • In the Yale Journal on Regulation, Christopher J. Walker also reacted to the Supreme Court's ruling in Collins v. Yellen.

  • This month, Gray Center Co-Executive Director Jennifer Mascott was appointed to serve as Vice Chair of the ABA Administrative Law Section's Constitutional Law and Separation of Powers Committee. Please join us in congratulating Jenn on this appointment, and check out new programming from the ABA Administrative Law Section on their YouTube channel.

  • Advisory Council Member Paul Larkin, Jr. recently interviewed fellow Advisory Council Member Jonathan Adler about the release of Marijuana Federalism, a new book edited by Adler. Listen to the Federalist Society teleforum here.

  • In Law & Liberty, Gray Center Advisory Council Member and Distinguished Senior Fellow Christopher DeMuth has an essay on the continued rise of deficit government. 
"Summary Judgment"
Past Gray Center Scholarship & Today's News

On Monday, June 7, 2021, U.S. health regulators approved the first new Alzheimer's drug in nearly two decades. However, the decision was a controversial one: three members of an FDA advisory committee resigned, questioning whether the drug works. The drug was approved under the FDA's process of accelerated approval, which makes medicines available to severely ill patients while a company does further research.

The controversy comes on the back of a period in which the FDA was in "crisis mode"; much of the work that wasn't Covid-related was put on hold. With the pandemic easing, new questions have emerged about the agency's long-term strategy for drug approvals. Additionally, the Biden administration has yet to select a permanent commissioner to take charge of the agency. According to a report in the The New York Times, key decisions facing the FDA include approval for cell and gene therapies, e-cigarettes, and cannabis. 

The rapid development of Covid-19 vaccines has led some to assert that the regulatory reforms of Operation Warp Speed should be made permanent. In The Hill, Lawrence J. McQuillan and Jonathan Hofer argue that the FDA's precautionary principle ought to be relaxed so that breakthrough drugs can be created faster and reach the people who need them in record time. A group of Senate Republicans have also introduced a bill the Promising Pathway Act  which offers an alternative to the conventional FDA regulatory process. The bill makes no changes for those only comfortable with existing FDA-approved drugs. However, patients with especially serious illnesses would be able, with the advice of their doctors, to make use of drugs that have passed safety trials and shown preliminary efficacy.

Be sure to also take a look at these Gray Center working papers that have touched on the FDA's work and scientific expertise more broadly:
  • In one, Patricia J. Zettler explores how the FDA has implemented its premarket review authorities for non-therapeutic uses of drugs and devices.
  • In another, Henry I. Miller argues that dysfunctional regulation has decimated entire sectors of biotechnology. 
  • In a third, M. Anthony Mills looks at the role of judgment and deliberation in science-based policy.
  • Finally, a recent episode of our Gray Matters podcast tackles questions surrounding future vaccine development, featuring a discussion of working papers authored by Sam Halabi and Kristen Osenga.
"Notice and Comment"
Things Worth Reading

“Deconstruction” or “Reconstruction”: Check out a new collection of essays on the future of the administrative state by a wide range of scholars including Judge Neomi Rao (left) and other friends of the Gray Center — in Daedelus, a journal of the American Academy of Arts & Sciences.

Agenda Setting: OIRA has released the Biden Administration’s first “Unified Agenda of Regulatory and Deregulatory Actions.” The GWU Regulatory Studies Center analyzes it here

Remembering Judge Robert Katzmann: Attorney General Merrick Garland writes fondly about the late judge, who passed away this month. Jonathan Adler collects links to more.

“Get Used to Judges Who Block Executive Orders”: Harvard’s Noah Feldman considers how judicial review of the Biden Administration’s initial actions may echo the Trump Administration’s experience.
This newsletter is edited by Molly Doyle,
Associate Director for Communications for the C. Boyden Gray Center for the Study of the Administrative State