Gray Center Scholarship

Dear friends,

The Gray Center's research roundtables have had a very busy few months. In this email, we'll give you a brief update on:

Newly posted working papers on our website;
Previous working papers that have recently been published in their final form in legal journals and;
Notable citations of Gray Center scholarship.

These papers cover a range of topics related to regulation, the separation of powers, and the administrative state more broadly and have received attention from the U.S. Supreme Court, multiple U.S. courts of appeals, state supreme courts, and academics.

Thank you for your interest in the work of the Gray Center. We hope these papers continue to elevate the scholarly debates surrounding the administrative state and lead policymakers to make better decisions.

All the best,

The C. Boyden Gray Center for the Study of the Administrative State

New Working Papers

Ronald A. Cass and Jack M. Beermann on how courts should respond when the most plausible reading of a law would make it unconstitutional. They review the Supreme Court's 2021 decision in United States v. Arthrex, finding the court's revision of the relevant statute jarring.

Richard J. Pierce, Jr. looks at how political polarity contributes to increasing reliance on nationwide injunctions and major actions on the Supreme Court's emergency docket. He argues that the Supreme Court needs to establish clear boundaries on the use of preliminary injunctions to ban the executive branch from acting until a court can address the merits of an action based on a complete record.

Thomas W. Merrill argues that the FTC lacks legal authority to issue legislative rules on competition matters. He evaluates arguments in favor of FTC rulemaking authority in competition matters based on the major questions doctrine, the Chevron doctrine, and ordinary statutory interpretation.

Ronald M. Levin argues against the major questions doctrine as applied by the Supreme Court in West Virginia v. EPA. He claims that the court overstated the relevant precedents instead of giving reasons to justify expanding the scope of the doctrine.

R. Shep Melnick reviews the novel characteristics of the regulatory process as applied by the Department of Education's Office for Civil Rights (OCR). He describes the office's sense of its mission and how competing demands on the agency have led it to diverge from its original statutory mandate.

Gus Hurwitz reevaluates arguments he made in 2014 that the Supreme Court was pushing antitrust law out of the judicial domain and into the realm of regulatory agencies. He still agrees with that observation but finds it less likely now that the court would defer to any major novel agency interpretations of antitrust law.

Robert W. Crandall and Thomas W. Hazlett write that there is scant evidence that the rise of large digital platforms has had deleterious effects on the market. They also argue against the creation of a new digital regulation agency.

Anita S. Krishnakumar explores the implications that the Court’s reliance on purposive arguments in the major questions cases might have for modern textualism. She argues that inquiries into whether agency policies fit within an agency's expertise and making inferences from legislative inaction call into question the court's commitment to textualism.

Rebecca S. Natow examines the process of negotiated rulemaking at the Department of Education and suggests ways to improve that system of regulation. She bases her analysis on official documents and interviews with department officials and related stakeholders.

Eli Nachmany finds that the Supreme Court has been enforcing a nondelegation principle to constrain executive discretion in cases involving rights protected by the Bill of Rights. He distinguishes "Bill of Rights nondelegation" from traditional treatments of the topic, which he calls "Article I nondelegation."

Prior Working Papers Newly Published in Law Reviews

Jonathan Adler in the Florida Law Review on super deference and heightened scrutiny. He argues that there are reasons to question deference to scientific determinations if an agency action implicates constitutional concerns.

Mila Sohoni in the Notre Dame Law Review on equity and the sovereign. She argues that how to conceive of the sovereign in the context of equity in a government without a sovereign has been a problem since the beginning of the republic.

Aaron Saiger in the Boston University Law Review on reasons that states should resist the urge to follow the changing federal approach to judicial deference. He highlights the way "saying what the law is" fundamentally differs in state common law courts.

Aaron Nielson and Christopher J. Walker in the Vanderbilt Law Review on protecting agency independence using Congress's anti-removal power. They write that even without statutory removal protections for agency officials, Congress has plenty of constitutional tools it can use to deter removal.

James Broughel in the Harvard Journal of Law & Public Policy Per Curiam on state experiences with regulatory budgeting. He argues that traditional factors measured by cost-benefit are insufficient and that governments should consider the tradeoffs inherent in regulatory budgeting.

Laura Jones and Patrick A. McLaughlin in the Harvard Journal of Law & Public Policy Per Curiam on key metrics used to measure regulation. They advocate using simpler metrics for regulatory budgeting to have the greatest impact.

Andrea Renda in the Harvard Journal of Law & Public Policy Per Curiam on international experiences with regulatory budgeting and cost offsetting rules. He concludes that regulatory budgeting is only effective when combined with a mix of better regulation instruments.

Anthony P. Campau in the Harvard Journal of Law & Public Policy Per Curiam on recommendations for future regulatory budgets. He writes about his experience implementing the first federal regulatory budget in 2017 and responds to several criticisms.

Notable citations of Gray Center scholarship

U.S. Supreme Court Justice Clarence Thomas cited a paper by Jenn Mascott in an April 2023 concurring opinion holding that federal courts retain jurisdiction over constitutional claims that arise during disputes with federal agencies

The Ohio Supreme Court cited papers by Aditya Bamzai and Daniel Ortner in a December 2022 opinion rejecting Chevron-style deference

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 that distinguished Stinson from Kisor deference

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

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 calling that court an Article I tribunal

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This newsletter is edited by Jace Lington, Research Director

Visit Us at: administrativestate.gmu.edu