Gray Center News | June 2023

Dear friends,

Welcome to the first installment of the summer 2023 Gray Center newsletter. The Gray Center continues to mourn the unexpected passing of former Ambassador C. Boyden Gray, but remains busy working on issues that motivated his career, such as the study of the interrelationship between Congress, the federal executive, and administrative agencies under the Constitution.

This week, both co-directors Adam White and Jenn Mascott will testify in Congress on such issues. On Wednesday, Jenn will address the separation of powers questions relevant to congressional regulation of the Supreme Court in the Senate Judiciary Federal Courts Subcommittee’s hearing on Supreme Court recusal and transparency. That same day, Adam will address the need for steady administration during the House Committee on Oversight and Accountability's hearing on regulations made by the Biden Administration.

Looking toward the fall, the Gray Center is preparing for October symposia on judicial reexamination of Chevron deference, cohosted by the George Mason Law Review, and the future of financial regulation, cohosted by the Journal of Law, Economics & Policy, followed by a December conference with the American Enterprise Institute on the jurisprudence and legacy of D.C. Circuit Judge Larry Silberman.

As detailed below, the past several months also have been jampacked. From January through May, the Gray Center held five separate paper workshops on topics ranging from nondelegation and the Bill of Rights to the constitutional and proper statutory role of agency adjudication, gathering dozens of scholars and experts to incubate several early-stage Gray Center-sponsored papers and articles. The Center’s separation of powers student clinic filed amicus briefs in the closely watched student loan litigation and several significant circuit court cases involving constitutional challenges to agency structure, among other litigation. And the Harvard Journal of Law & Public Policy and NYU Journal of Law & Liberty are in the final stages of editing essays from conferences the Gray Center cohosted at Harvard and NYU this past calendar year. Look for links to those new publications soon including articles and published remarks by D.C. Circuit Judge Neomi Rao and Sixth Circuit Chief Judge Jeff Sutton, among others.

Below are links to the Center’s recent podcasts, Gray Center remarks at events and conferences, such as Jenn’s recent receipt of the Joseph Story Award for service and legal scholarship, George Will’s discussion of Center analysis of the CFPB’s appropriations authority, and Supreme Court citations of Gray Center articles and research in Axon v. FTC and Sackett v. EPA.

All the best,

Jenn Mascott & Adam White

Co-Executive Directors

The Gray Center

Recent Center Events

The Gray Center hosted the second annual C. Boyden Gray Lecture on the Administrative State, in Washington, D.C., featuring The Hon. Eugene Scalia. In addition, we hosted two all-star panel discussions about the rule of law and Congress's power of the purse, featuring Ronald A. Cass, Sally Katzen, Noah J. Phillips, Mick Mulvaney, and Michael McConnell. Click here to watch. And here to find podcasts from the event.

The Gray Center and the Harvard Chapter of the Federalist Society hosted a panel discussion featuring Judge Jeffrey S. Sutton and Justices Brian Hagedorn, Caleb Stegall, and David N. Wecht, moderated by Judge Thomas Griffith. The panel precedes a symposium about administrative law in the states that will appear in the Harvard Journal of Law & Public Policy. To hear a podcast version of the panel discussion, click here.

The Gray Center and the NYU Journal of Law & Liberty hosted panel discussions about the rule of law in the administrative state and the Roberts Court, followed by a keynote address from Judge Neomi Rao. The panels discussed a forthcoming symposium that will appear in the NYU Journal of Law & Liberty. Click here to watch and here to listen via podcast.

Jenn Mascott spoke at a Michigan Law public law workshop about her new research into the new trial right as an overlooked source of structural constitutional reform.

Jenn Mascott discussed the Separation of Powers and the Supreme Court Term at an event sponsored by the Michigan Law Federalist Society.

Jenn Mascott and Adam White participated in a conference focused on the legitimacy of administrative law sponsored by the Hoover Institution.

Adam White led eight Gray Center scholarship workshops this spring focused on issues like state administrative law, agency adjudication, nondelegation and the Bill of Rights, and civil service reform.

Jenn Mascott Receives Story Award

Gray Center Co-Executive Director Jenn Mascott received the 2023 Joseph Story Award!

The Federalist Society presented the honor and Jenn gave a moving speech at the National Student Symposium banquet on March 4 in Austin, Texas. Click here to watch the video. And click here to watch a video about Jenn produced by the Federalist Society. You can also find posts written by earlier recipients honoring Jenn here and here.

Separation of Powers Clinic

In 2023, the Separation of Powers Clinic filed amicus briefs in the following litigation:

For the U.S. Supreme Court, in Joseph R. Biden v. State of Nebraska and Department of Education v. Myra Brown, a brief arguing that the student loan forgiveness plan risks encroaching on Congress's power of the purse

For the U.S. District Court for the District of Utah, in Garfield County v. Biden, a brief arguing that the president does not have unlimited discretion, free from judicial review, to designate federal land as a national monument

For the U.S. Court of Appeals for the Fifth Circuit, in Burgess v. Whang, a brief arguing that the Humphrey’s Executor exception to the President’s at-will removal power cannot apply to any FDIC Directors

For the U.S. Supreme Court, in Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Brian W. Coughlin, a brief arguing that the U.S. Supreme Court should reconsider its creation of tribal sovereign immunity in certain cases

For the U.S. Court of Appeals for the Ninth Circuit, in Antonio De La Rosa-Rodriguez v. Merrick B. Garland, a brief arguing that the Ninth Circuit should reject the notion of hypothetical statutory jurisdiction

For the U.S. Court of Appeals for the Fifth Circuit, in American Home Furnishings Alliance, Mississippi Economic Council, and Mississippi Manufacturers Association v. United States Consumer Product Safety Commission, a brief arguing that CPSC commissioners exercise executive power and should be subject to presidential removal at will

For the U.S. Supreme Court, in Calcutt v. Federal Deposit Insurance Corporation, a brief arguing that the Sixth Circuit essentially blocked future challenges to constitutional structural violations on removal grounds

To see all of the briefs filed by the clinic, click here.

Notable citations of Gray Center-sponsored and affiliated research

On April 14, the Supreme Court ruled in Axon v. FTC, holding that the statutory review schemes set out in the Securities Exchange Act and Federal Trade Commission Act do not displace a district court’s federal-question jurisdiction over claims challenging as unconstitutional the structure or existence of the SEC or FTC.

Research published by the Gray Center’s Co-Executive Director, Jennifer Mascott, was cited in a concurring opinion on the case authored by Justice Clarence Thomas. Professor Mascott’s work, Constitutionally Conforming Agency Adjudication, contends that there are inherent constitutional constraints on the types of matters that federal agencies can adjudicate.

Other notable citations:

U.S. Supreme Court Justice Clarence Thomas cited a Gray Center policy brief by Susan Bodine in a May 2023 concurring opinion in Sackett v. EPA, arguing that the court should read the words "navigable" and "of the United States" as limits on EPA jurisdiction under the Clean Water Act.

United States Court of Appeals for the Second Circuit Judge Richard J. Sullivan cited a paper by Ilan Wurman in a March 2023 opinion in CFPB v. Law Offs. of Crystal Moroney, saying the funding structure of the CFPB does not violate the nondelegation doctrine

United States Court of Appeals for the Eleventh Circuit Judge Britt Grant cited papers by Ronald A. Cass and Jeffrey A. Pojanowski in a January 2023 concurring opinion in U.S. v. Dupree that distinguished Stinson from Kisor deference

The Ohio Supreme Court cited papers by Aditya Bamzai and Daniel Ortner in a December 2022 opinion in TWISM Ents., L.L.C. v. State Bd. of Registration for Professional Engineers & Surveyors rejecting Chevron-style deference

United States Court of Appeals for Veterans Claims Judge Joseph L Falvey, Jr. cited a paper by Michael S. Greve in a December 2022 concurring opinion in Prewitt v. McDonough, calling that court an Article I tribunal

Marketplace of Ideas

Working papers now available on our website:

Ronald A. Cass and Jack M. Beermann on how courts should respond when the most plausible reading of a law would make it unconstitutional

Thomas W. Merrill argues that the FTC lacks legal authority to issue legislative rules on competition matters

Eli Nachmany finds that the Supreme Court has enforced a nondelegation principle to constrain executive discretion in cases involving rights protected by the Bill of Rights

Anita S. Krishnakumar explores the implications that the Court’s reliance on purposive arguments in the major questions cases might have for modern textualism

Ronald M. Levin argues against the major questions doctrine as applied by the Supreme Court in West Virginia v. EPA

Rebecca S. Natow examines the process of negotiated rulemaking at the Department of Education and suggests ways to improve that system of regulation

R. Shep Melnick reviews the unusual characteristics of the regulatory process as applied by the Department of Education's Office for Civil Rights

Prior working papers published in law reviews since our last newsletter:

Jonathan Adler on super deference and heightened scrutiny in the Florida Law Review

Mila Sohoni on equity and the sovereign in the Notre Dame Law Review

Anthony P. Campau on recommendations for future regulatory budgets in the Harvard Journal of Law & Public Policy Per Curiam

Aaron Saiger on reasons that states should resist the urge to follow the changing federal approach to judicial deference in the Boston University Law Review

Aaron Nielson and Christopher J. Walker on protecting agency independence using Congress's anti-removal power in the Vanderbilt Law Review

Richard J. Pierce, Jr. on how political polarity contributes to increasing reliance on nationwide injunctions and major actions on the Supreme Court's emergency docket in the Penn State Law Review

Making Our Case

Jenn Mascott, Adam Liptak, Steve Vladeck, and Jeffrey Rosen discussed Vladeck's new book The Shadow Docket at the National Constitution Center

Adam White in the Harvard Journal of Law and Public Policy on Samuel Alito's conservatism

Brianna Herlihy at Fox News about Jenn Mascott receiving the 2023 Joseph Story Award from the Federalist Society

Adam White for the Program on Constitutional Government at Harvard on the Roberts Court and relearning the virtues of steady administration

Adam White reviewed James Rosen's new biography of Justice Scalia, covering his career before he joined the Supreme Court at Commentary

David McGarry quoted Adam White in an article at Reason about current litigation challenging the constitutionality of the CFPB

Adam White in The Bulwark on how the CHIPS Act shows the dangers of giving the executive branch too much policy discretion

Adam White in the Wall Street Journal on policies that should receive attention from the House Select China Committee

Adam White joined the Consumer Finance Monitor podcast to discuss CFSA v. CFPB, whether the U.S. Supreme Court will take the case, and the potential future of litigation challenging CFPB actions. Click here for part I, and here for part II of the interview

Jace Lington reviewed Philip K. Howard's book about public sector unions at The American Conservative

Gray Center Podcasts

Adam White and Jace Lington spoke with James-Christian Blockwood about civil service reform on Gray Matters

Adam White and Jace Lington spoke with David Bernhardt about his new book about reforming the administrative state on Gray Matters

Adam White and Jace Lington spoke about Adam's review of James Rosen's new biography of Justice Scalia on Gray Matters

Adam White and Jace Lington spoke with Judge Glock about the origins of independent regulatory commissions and the role of expertise on Gray Matters

Adam White and Jace Lington spoke with Andrew Wheeler and Reeve Bull about Virginia’s new Regulatory Economic Analysis Manual and how it will change the way Virginia regulatory agencies approach their work on Gray Matters

Adam White and Jace Lington spoke with Philip K. Howard about the problems public unions create for modern governance, the subject of his new book, Not Accountable: Rethinking the Constitutionality of Public Employee Unions on Gray Matters

Adam White and Jace Lington spoke with EEOC Commissioner Keith Sonderling and Brad Kelley about how to mitigate the risk of employment discrimination when using artificial intelligence tools on Gray Matters

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This newsletter is edited by Jace Lington, Research Director

Visit Us at: administrativestate.gmu.edu