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Dear Friends,
This is a letter I’ve been keen to write for months. A few days ago, we finally announced that Professor Jennifer Mascott is joining the Gray Center, to partner with me in leading it in the years to come. This is great news for the Center as we continue to improve our current programs and build new ones.

Jenn has offered a few thoughts on her arrival, which you can read right after my letter. But if you’ll humor me for a moment, I have a few words of welcome.

In just her first few years as a law professor, Jenn quickly established herself as one of the most significant new voices on administrative law, especially in terms of the Constitution’s separation of powers. Her research on the Constitution’s requirements for the appointment of officers anticipated the Supreme Court’s own re-examination of the issue in Lucia v. SEC, and it was cited extensively by Justice Thomas’s concurring opinion in that case. She continues to research and write on the Constitution’s structural requirements for administration, and on the constitutional origins of the Nondelegation Doctrine.

From 2019 to 2021, she served in the U.S. Department of Justice’s Office of Legal Counsel and in other leadership roles. There she continued to work on issues related to administrative law, including the Justice Department’s own re-examination of the Administrative Procedure Act.

Her grounding in both the theory and practice of administrative law will make a huge impact on our conferences and our academic roundtables, from start to finish: picking topics, inviting authors and speakers, and debating the finished papers. And in her own work, from writing to teaching, she will expand the Center’s work on constitutional administration in many ways.

Last but not least, I’m glad that the Center will have another face and another voice. For the last four years I’ve enjoyed introducing our conferences, hosting our roundtables, and moderating our podcasts. (And writing these newsletter notes.) I’ll continue to do it, but now I’ll be taking turns with a great scholar — and great friend.

So please join me in welcoming Jenn. And your first opportunity to welcome her in-person will be June 11, when the Gray Center finally hosts an in-person event again: our conference on the APA’s 75th Anniversary, in conjunction with our special symposium issue of the George Mason Law Review. If you’re in DC, then I hope you’ll join us. You can get more event details and register here.

All the best,

Adam White
Co-Executive Director
The C. Boyden Gray Center for the Study of the Administrative State
A Welcome Note from our New Co-Executive Director, Professor Jennifer Mascott

Dear Friends,

I am thrilled to join Adam in the leadership of the Gray Center. Since Neomi Rao founded the Center with the law school's support in 2015, it has been an incubator for academic scholarship by leading administrative law scholars and has brought together policymakers, practitioners, and academics to discuss the most pressing contemporary issues in executive government. Over the years, my work benefited significantly from participation in Center events, and in this new capacity as Co-Executive Director, I look forward to helping the Center continue to provide a forum for scholars from institutions across the country to workshop papers headed for publication in prominent journals. 

Building on recent service at the Department of Justice, I am enthusiastic about the opportunity to expand the frontier of issues studied by the Center to include exploration of constitutional issues addressing the federal separation of powers. Over the next few years, reevaluation of the balance of power between Congress and the Executive Branch will be critical as government continues to expand and Congress delegates an increasing scope of power to administrative entities. The Center provides a venue for encouraging scholars representing a wide range of jurisprudential views to examine these issues. It also amplifies the efforts of law school faculty to train the next generation of lawyers to think critically about the protection of separated powers, such as through the newly created seminar on the Separation of Powers in the Political Branches that Scalia Law School will offer this coming fall. We hope you will join us for our events this coming year on topics such as presidential administration, agency independence, and Justice Clarence Thomas's influence on administrative law and separated powers over thirty years on the Court.


Jennifer Mascott
Co-Executive Director
The C. Boyden Gray Center for the Study of the Administrative State
Center of Activity: Upcoming Events

Register Today!

Friday, June 11, 2021:

The Gray Center is excited to welcome you back for an in-person event in downtown D.C. on Friday, June, 11, 2021. Please note that the event will comply with any D.C. public health requirements still in effect on that date. Click below for more event details and to register.
"Gray Matters": Listen to Our Most Recent Podcast Episodes

"Do NEPA (the National Environmental Policy Act) and other permitting requirements doom green energy and infrastructure plans?” That was the title of a recent webinar, organized by the Law & Economics Center at George Mason University’s Antonin Scalia Law School. Our Co-Executive Director Adam White moderated a discussion with Mario Loyola (Competitive Enterprise Institute) and Andrew Rosenberg (Union of Concerned Scientists), who have both worked firsthand on these issues. Listen to it here.

For the last forty years, courts have been especially deferential to federal agencies’ claims of scientific expertise. And in the last year, we have seen the Supreme Court grapple repeatedly with questions of administrative decisions related to managing the Covid-19 pandemic.
How much deference should courts afford agencies on scientific and technical matters? Jonathan Adler and Don Elliott recently wrote on this topic for the Gray Center's Working Paper Series. They join Adam to discuss their papers on the “super-deference” doctrine of Baltimore Gas & Electric Co. v. NRDC. Find it here.

The Paycheck Protection Program was the single largest component of the federal pandemic relief legislation passed in March of 2020. Since then, a debate has developed about the program’s speed-accuracy trade-off, exposing the challenges administrators face when they’re responsible for administering vague statutes in emergency circumstances with little or no information up front.
Prof. Susan Morse wrote on this subject as part of a Gray Center roundtable on administration in crisis. Listen to the episode of the podcast she features in here.

Amid the Covid-19 crisis, Operation Warp Speed helped to develop vaccines with astonishing speed. But even with a fast-tracked FDA process, there still remain significant questions about risk, liability, and intellectual property. These are the subjects of two new Gray Center working papers by Professor Sam Halabi of the University of Missouri and Professor Kristen Osenga of the University of Richmond. In this episode of the podcast, they join Adam White to discuss their papers and what we’ve learned since the fall. Take a listen here.

Listen to the Gray Center's entire audio catalog here, as well as on iTunesSpotifyStitcher, and wherever else you listen to podcasts.
Working Paper Series: Read the Latest

The following paper was workshopped at a Gray Center roundtable titled “Congress’s Power of the Purse in the Administrative State”

One potential threat to the power of the purse – a power that has frequently been thought of as one of Congress’s most important powers – has been the extent to which Congress has abdicated the power by authorizing executive agencies to collect fees, fines, and penalties, potentially providing alternative funding that does not require appropriation by Congress. In this article, Kevin R. Kosar studies the effect of such funding on agencies to see whether fees and fines do have such an effect.
Now Published: See Where Gray Center Scholarship Has Appeared Recently

Nondelgation at the Founding by Ilan Wurman, 130 Yale L.J. 1490 (2021)

Spotlight on
Alexander Hamilton
Student Fellows
Congratulations to the Antonin Scalia Law School's Class of 2021! The Gray Center would like to congratulate all the 2021 graduates from Scalia Law, with special thanks and recognition to the outgoing and former Alexander Hamilton Student Fellows who graduated in May. As the Center has grown, so has the student fellow program – there are more of our student fellows in this graduating class than any previous class. The student fellows are key contributors to the work of the Gray Center, and we are incredibly grateful to them for all the work they have done. We wish them all the best as they begin their legal careers!

Graduating Scalia Law Class of 2021 Alexander Hamilton Student Fellows include:
  • Kevin Case
  • Gelane Diamond
  • Johan Englen
  • Liam Harrell
  • Ethan Hoffman
  • Ben Janacek
  • Alexander Krzepicki
  • Mousa Martin
  • Cody Ray Milner
Congratulations also to Alexis Romero for receiving the Virginia Association of Defense Attorneys' (VADA's) 2021 Diversity Scholarship! Alexis is a 2L at Scalia Law and a current Alexander Hamilton Student Fellow at the Gray Center. He also serves as Articles Editor of the George Mason Law Review. More information about VADA and the scholarship can be found here. Congrats again, Alexis!
Distinguished Work:
Updates on our Advisory Council, Affiliated Faculty,
and Distinguished Senior Fellows

  • In an interview with Resources for the Future, Gray Center Distinguished Senior Fellow and Advisory Council Member C. Boyden Gray (right) explains why RFF’s work on cost-effective environmental regulation is so important, and why he has been so personally invested in these issues throughout his career. “That interest was supported by my upbringing—spending the summers of my childhood in the Blue Ridge Mountains in North Carolina, and then some of my adulthood on Mount Desert Island in Maine, where pollution was a major concern.”

  • The Heritage Foundation published a commentary by Gray Center Advisory Council Member Paul Larkin, Jr., on Florida's commonsense occupational licensing reform. Read it here.

  • In a new episode of her podcast, Net Assessment, Advisory Council Member Melanie Marlowe discusses the case for adjusting U.S. strategic defense objectives in light of flat or declining Pentagon budgets over the next few years.

  • Reeve Bull has a piece in the Yale Journal on Regulation's Notice and Comment blog celebrating the career of Gray Center Distinguished Senior Fellow and Advisory Council Member Paul Verkuil. Find it here.
"Notice and Comment"
Things Worth Reading

 The Realities of Rulemaking — In his popular Conversations with Tyler podcast, George Mason University's Tyler Cowen recorded a fun and smart podcast conversation with Harvard’s Daniel Carpenter on the FDA and other modern regulatory issues. Along the way, Carpenter extols the work of Brian Libgober on the practical realities of the notice-and-comment process at the Federal Reserve. Prof. Libgober, a familiar face at the Gray Center, presented a draft of his recent Fed paper at a Gray Center roundtable — Working Paper 20-28.

Shady Deals — MIT Technology Review describes how the Massachusetts Audubon Society tried to profit from the new carbon credit market by threatening to cut down its own trees.

Rethinking “Cases” and “Controversies” — In a fascinating and challenging judicial opinion, the Eleventh Circuit’s Judge Kevin Newsom urges a complete re-think of modern constitutional standing doctrines. “It has taken me a while to come to this conclusion,” he writes, “and unpacking it will likely take some doing.” The opinion is well worth your time and consideration.
This newsletter is edited by Molly Doyle,
Associate Director for Communications for the C. Boyden Gray Center for the Study of the Administrative State