Against Remedial Restraint in Administrative Law

21 Pages Posted: 16 Jan 2017 Last revised: 9 Apr 2017

See all articles by Christopher J. Walker

Christopher J. Walker

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: April 6, 2017

Abstract

In Remedial Restraint in Administrative Law, Professor Nicholas Bagley argues that we should replace administrative law’s ordinary remand rule with a more restrained, context-specific standard of first assessing whether the parties challenging the action were actually prejudiced by agency error. He bases this argument in part on his belief that the states challenging the Obama Administration’s sweeping executive actions on immigration suffered no harm from the Department of Homeland Security’s failure to engage in notice-and-comment rulemaking. That is because, he argues, the states received notice through leaks to the media and had a chance to comment through their public complaints on cable news programs and elsewhere.

This Response agrees that administrative law should focus more on remedies. But of all the serious challenges facing the regulatory state today, the lack of this particular type of remedial restraint is not among them. On the contrary, the current rule-based ordinary remand rule plays an important role in preserving a proper separation of powers, in ensuring agencies exercise their congressionally delegated discretion in a nonarbitrary manner, and in facilitating a richer court–agency dialogue that allows courts to have a systemic effect on the administrative process. The benefits of the ordinary remand rule exceed any benefits of a more restrained, standard-like remedial approach. And the current rule avoids the costs of courts assessing, for instance, whether regulation by press leakage or regulation by Twitter is an acceptable, harmless substitute for notice-and-comment rulemaking.

Keywords: administrative law, remedies, remand, separation of powers, court-agency dialogue

Suggested Citation

Walker, Christopher Jay, Against Remedial Restraint in Administrative Law (April 6, 2017). Columbia Law Review Online, Vol. 117, pp. 106-126, 2017; Ohio State Public Law Working Paper No. 375. Available at SSRN: https://ssrn.com/abstract=2898959

Christopher Jay Walker (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States
614-247-1898 (Phone)

HOME PAGE: http://www.chrisjwalker.com

Register to save articles to
your library

Register

Paper statistics

Downloads
264
Abstract Views
988
rank
114,036
PlumX Metrics