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Abstract:
In recent years, at least since President Reagan's precedent-setting Executive Order 12291, the phenomenon of direct presidential supervision of agencies has received significant attention in legal scholarship. Congress's involvement has been much less thoroughly examined, and, although most people are familiar with congressional hearings and oversight, the dominant image as a legal matter is that once Congress legislates, it loses control over how its laws are administered unless it chooses to legislate again. In the political science/public policy literature, the understanding of Congress's role in monitoring agencies has evolved from despair that Congress is not sufficiently engaged to a recognition that Congress gets involved when it is worth it in terms of gaining political support from oversight activities. The police patrol/fire alarm model of oversight predicts that Members of Congress have the strongest incentive to get involved when a constituent pulls an alarm. However, the high volume of oversight that is not responsive to particular alarms contradicts this prediction. Congress routinely engages in a very high volume of oversight, both formal and informal. Formal oversight includes more precise legislation, appropriations riders, earmarked funding, certification requirements and Senate advice and consent on appointments. Informal oversight includes hearings, direct communication with agencies, influence over appointments, investigations, and casework. This paper sets out and analyzes the various forms of formal and informal oversight and then examines key doctrines of administrative law, namely the nondelegation doctrine, Chevron and Vermont Yankee, and asks whether our understanding of those doctrines is affected by the fact of constant and consistent congressional involvement in and oversight of the administrative process.

Congress, oversight, nondelegation, President, separation of powers

Abstract:
The transition between presidencies has long created controversies. Whether the issue is "midnight judges" or "midnight regulations," presidential action at the end of a term has long provoked scrutiny and criticism. Presidents have also raised eyebrows at the beginning of their terms when they assert their authority and try to undo what their predecessor in office left behind. More than one president has taken action aimed specifically at "midnight regulations," such as ordering a freeze on the issuance of new regulations, a review of regulations issued at the end of the prior administration and other similar action. This article looks at the legality and propriety of "midnight regulation" and the devices incoming presidents use to undo "midnight regulation" left behind by their predecessors in office. The article also looks at the reasons why presidential and administrative action tends to increase at the end of a term and the forms that late term action tend to take. We see that sometimes late term action is simply part of an attempt to get more done before the deadline imposed by inauguration day, while in other situations delay may be due to external forces or due to intentional waiting for political reasons. Late term action that should be the greatest cause for concern may be action that appears designed merely to tie the hands of an incoming administration or create political costs without much hope of genuinely projecting the outgoing administration's policies into the future.

Abstract:
The U.S. Supreme Court's primary role in the history of the United States, especially in constitutional cases (and cases hovering in the universe of the Constitution), has been to limit Congress's ability to redefine and redistribute rights in a direction most people would characterize as liberal. In other words, the Supreme Court, for most of the history of the United States since the adoption of the Constitution, has been a conservative force against change and redistribution. The Court has used five distinct devices to advance its control over the law. First, it has construed rights-creating constitutional provisions narrowly when those provisions are advanced by minorities and other disadvantaged groups. Second, it has construed Congress's power to create rights narrowly, holding unconstitutional many efforts by Congress to either expand the rights of minorities and other disadvantaged groups, or to create new rights for such people. Third, the Court has construed civil rights statutes narrowly, often provoking legislative responses by Congress. Fourth, the Court has construed some constitutional provisions broadly in order to take control of areas of the law that had been thought of as within the control of the states. Fifth, the Court has expanded the scope of federal preemption of state law which results in reducing the sphere governed by state common law. While these devices do not all necessarily result in taking the law in a conservative direction, by and large that has been the use to which the Court has put them.

One way in which the Court has advanced its agenda is by seizing power that, under federalism traditions, belong to state courts and state legislature. In several senses, the Supreme Court has begun to function like a Supreme Common Law Court of the United States. First, despite all of its federalism rhetoric, the Court seizes control of areas of the law that have traditionally been the domain of the states and imposes federal norms that is has created for the purpose. Second, the Court applies interpretive methods, in both constitutional and non-constitutional cases, that draw from traditional common law methodology and allow for a high degree of creativity.

supreme court, judicial review, civil rights

Abstract:
Presidential transition periods are times of uncertainty and contradiction. The outgoing president retains all the formal legal powers of the presidency, yet his last electoral success is four years removed and his political capital is at low ebb. Further complicating the matter is that the transition agendas of the two presidents are unlikely to be aligned. Even if both presidents are from the same political party, their goals in the transition period may be widely disparate. The outgoing president will be concerned with preserving his legacy. The incoming president, on the other hand, will be focused on beginning her own initiatives. When the incoming and outgoing presidents are from opposing political parties the conflicts during the transition period may be even more acute. The outgoing president will want to protect his policies or accomplishments from being reversed or undermined and may also want to create obstacles to prevent his successor from too quickly achieving political and policy success. The incoming president, in turn, may desire to expeditiously reverse the policies of the previous president and may choose to tarnish the record of her predecessor in order to weaken any remaining support for his programs. Not surprisingly, then, presidential transitions have historically followed no consistent pattern.

This article investigates whether there are the legal principles that guide the conduct of the president during presidential transitions and, if so, how far those obligations extend. We introduce the issue by reviewing the procedures for selecting and inaugurating the president and by canvassing the historical record as to how transitions have previously been accomplished. We then discusses whether Constitutional provisions such as the Take Care Clause, the Oath Clause, and the Term Clauses and/or the president's implied foreign policy and national security powers confer legal duties on the president with respect to transition. We conclude that presidential transitions impose some constitutional obligations upon the president but that outside the area of foreign policy, the extent of those obligations are relatively limited. We suggest that the outgoing president must offer sufficient briefings and assistance to assure that the new president is able and prepared to execute her powers from the first day in office. We contend, however, that the outgoing president is under no obligation to implement the new president's political agenda or to end implementing his own even if the new president may be forced by the outgoing president's actions to expend her political capital to undo the previous administration's work. The Constitution does not demand that the outgoing president pave the political way for his successor.

president, presidential transitions, constitutional obligations under presidential transitions

Abstract:
In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978), the Supreme Court unanimously and stridently chastised the D.C. Circuit for forcing the Nuclear Regulatory Commission to employ procedures such as discovery and cross-examination in a notice-and-comment rulemaking when no organic statute, regulation, or constitutional provision required it. Vermont Yankee is almost universally regarded as one of the most important administrative law decisions issued by the Supreme Court. For the past three decades, various scholars, most notably Paul Verkuil and Richard Pierce, have been anticipating, and urging, a "Vermont Yankee II," in which the Court would similarly invalidate other administrative law doctrines. These prior calls for a Vermont Yankee II were not actually attempts to extend the reasoning and holding of Vermont Yankee. Rather Vermont Yankee was employed as a broad symbol - a metaphor of sorts - for Supreme Court intervention to reign in undue lower-court interference with agency discretion and autonomy. There are a significant number of important administrative law doctrines that seem to us to fly squarely in the face of all but the most unreasonably narrow understandings of the Vermont Yankee decision. These doctrines, ranging from the prohibitions on agency ex parte contacts and prejudgment in rulemakings to the expanded modern conception of the notice of proposed rulemaking, are all ripe for reconsideration. In this paper, after setting out the Vermont Yankee decision, we examine previous calls for a "Vermont Yankee II" and explain, in light of what we characterize as the "natural reading" of Vermont Yankee why the regulation of ex parte contacts and agency prejudgment in rulemakings, and mainstream applications of the APA's notice requirements violate the holding of Vermont Yankee as properly understood, as well as the principles and policies underlying the decision. Rejecting these doctrines is thus the appropriate target for a Vermont Yankee II.

rulemaking, administrative law, Vermont Yankee, judicial review

Abstract:
Congress engages in an extensive and ever-increasing level of oversight of the activities of the Executive Branch. The level of observation and supervision is high enough that it is appropriate to hold Congress responsible for a very high proportion of the activities of the Executive Branch. In recent years, so much attention has been paid to assertions of power by the President and the Supreme Court, Congress has been somewhat neglected. This paper analyzes the power of Congress mainly through an administrative law lens with the aim of pointing out ways in which Congress has remained or become responsible for administrative law. Congress has become more responsible in recent years, not because of any improvements or reforms it has undertaken, but rather because developments in administrative law have placed responsibility on Congress. Some of the most important developments in administrative law in recent years can be traced to reinforcement, by federal courts reviewing administrative action, of Congress's primacy as the most powerful policymaking branch of the federal government. I do not mean to argue that the law has consistently moved in the direction of congressional primacy. By and large, the Supreme Court has promoted its own agenda to the exclusion of deference to anyone else, including Congress, the Executive Branch and all branches of state governments. However, in some areas of administrative law, the Court seems to have turned toward Congress and away from the Executive Branch. As compared with policymaking in the Judicial and Executive Branches, Congress is the most democratic and legitimate of the three federal branches, including even the independent agencies which are supposed to be shielded from politics but instead may be the most political of all. In fact, a key argument of this paper is that recent developments in administrative law exhibit a return to congressional primacy both in matters of interpretation and matters of policy, and that this is a good thing in terms of accountability and legitimacy.

Abstract:
In Chevron U.S.A., Inc. v. NRDC, decided in 1984, the Supreme Court announced a startling new approach to judicial review of statutory interpretation by administrative agencies, which requires courts to defer to agency interpretations of ambiguous statutes. Although it was perhaps hoped that Chevron would simplify judicial review and increase deference to agency interpretation, the opposite has occurred. Chevron has complicated judicial review and at best it is uncertain whether it has resulted in increased deference to agency interpretation. In fact, for numerous reasons, Chevron has been a failure on any reasonable measure and should be overruled. Further, overruling Chevron would be consistent with the practice of stare decisis because it is a judge-made rule, has proven unworkable in practice, is inconsistent with a governing statute and has not spawned settled expectations that would be upset if it is overruled. Finally, the Chevron doctrine should be replaced either by reviving, with minor modifications, pre-Chevron practice, or with a slightly modified version of Skidmore deference.

administrative law, Chevron, judicial review, statutory interpretation

Abstract:
The flurry of regulatory activity by the outgoing administration of President George W. Bush has raised, once again, the specter of midnight regulation. Whatever the reason for midnight regulation, there seems to be a general consensus that something has gone wrong when an outgoing administration takes important action while the incoming administration is essentially waiting to take over. Most late term action is subject to the obvious question of "if this action was so important, why didn't the administration take it in the last seven and three-quarters years or so?" Even though the Constitution leaves the incumbent in office for approximately eleven weeks after election day, we feel uncomfortable when an outgoing administration waits until late in the term to take politically controversial action or loads up on late term actions to project its policy preferences in the future. This article examines possible ways to combat midnight regulation, beginning with a recent proposal in Congress to restrict rulemaking activity during the last 90 days of an outgoing administration by giving the incoming administration the power to "disapprove" of regulations adopted in the final 90 days of a President's term. The first part of the article explains the bill and identifies problems with it. The second part of the article offers two alternative approaches, one involving a reform to administrative law and another outlining statutory proposals different from the bill proposed by Representative Nadler.

midnight regulation, administrative law, presidential power

Abstract:
The Supreme Court’s elimination of the subjective element of the qualified immunity defense in constitutional tort cases had the unanticipated side effect of creating the potential for constitutional stagnation. To avoid this stagnation and although it appears to violate the general practice of constitutional avoidance, in Saucier v. Katz, the Court held that federal courts must decide the constitutional merits before deciding whether the defendant is immune from damages relief. Lower court judges and some Supreme Court Justices were unhappy at the prospect of addressing constitutional issues in all immunities cases, especially in those cases in which it was clear that the rights allegedly violated were not clearly established at the time of the violation. Even more so, courts were reluctant to reach the merits when the constitutional issues were difficult and complex, and when the decision on the merits was unlikely to provide much guidance in future cases, perhaps because the case was fact bound or unlikely to recur. In this Term’s Pearson v. Callahan, the Court relented and held that federal courts are no longer required to reach the constitutional merits whenever the defendant raises a qualified immunity defense. The Pearson decision is highly problematic in one aspect, namely that it stated no standard that federal courts should apply to decide whether to reach the constitutional merits in any particular case. The decision whether to reach the constitutional merits in constitutional tort cases in which all defendants are immune has thus apparently been left to complete judicial discretion with no governing standard whatsoever. While it may be appropriate for courts to exercise discretion over whether to reach the constitutional merits in qualified immunity cases, this discretion should be guided by legal standards to provide guidance to the parties and prevent strategic behavior designed to influence whether the merits are reached in a particular case. The primary factor that should guide the discretion is whether the decision on the merits is likely to have precedential value in future constitutional tort cases, i.e. whether deciding the merits will create clearly established law, either new rights or a clear denial of the existence of rights alleged.

qualified immunity, constitutional avoidance, civil rights

Abstract:
The widespread dissemination of knowledge about the Miranda protections is often referred to as one of the most successful efforts ever made to educate the American public about its constitutional rights. Studies confirm that a high percentage of the public is aware of Miranda, largely due to television and other mass media. This article asks the question: if television is educating the public about its Miranda rights, what exactly is it teaching us? As fans of the cop show NYPD Blue (a show in which the interrogation and confession are often the dramatic focus) we use that show to explore the messages popular culture communicates about Miranda and the conduct of police interrogations. We ask not only what legal norms about police conduct are transmitted through television, but also what role television itself has in creating those norms. We also explore an ancillary question: if so many people know their rights, why don't more people assert them -- both on television and in real life?

Abstract:
By and large the law of judicial review in the United States appears to be statutory and it is understood that way by most lawyers in the U.S. Scratch below the surface, however, and the federal courts in the U.S. may not actually behave all that differently than court systems with an openly acknowledged common law tradition in administrative law. Although the US federal courts ostensibly apply the Administrative Procedure Act, in many ways they behave like common law courts, creating administrative law based on principles and policies that may or may not be consistent with the language, structure and history of the APA and other relevant provisions. Although in some areas, the Supreme Court has required a statutory focus, in other areas it has not, and the Court has not provided or even attempted to provide a principled justification for its continued use of administrative common law or a method for choosing between a statutory or common law method in any particular doctrinal area.

administrative law, judicial review

Abstract:
This volume is intended as a handbook to assist government and private counsel engaged in federal administrative adjudication. It covers all of the major issues relating to formal and informal adjudication, including the right to a hearing under due process and the Administrative Procedure Act (APA), as well as the requirements relating to the pre-hearing, hearing, and post-hearing phases. It also covers the APA's provisions relating to the integrity of the decisionmaking process. The book considers the statutory protections for the independence of administrative law judges under the APA and the right to attorneys' fees under the Equal Access to Justice Act.