Clowning Around with Final Agency Action

Abstract

While Chevron and Auer deference dominate the administrative law literature, another doctrine — the final agency action requirement — has been perverted by the lower federal courts. Several circuits have developed an undergrowth of formalistic rules that tighten the Supreme Court’s standard, as it was laid out in Bennett v. Spear. This development ignores the Court’s decades-old refrain that the final agency action requirement should be flexible. Unfortunately, this development comes at the worst possible time. The interconnectedness of federal and state agencies has led to a sort of division of labor. Data collection, designations, and enforcement are increasingly divided across different agencies. Because the lower federal courts have been increasingly formalistic with the final agency action requirement, there is an ever-increasing number of agency actions that will evade judicial scrutiny. To demonstrate how and why the lower federal courts should correct their course, this Note looks at almost a century of precedent, the development of “fusion centers” after 9/11, and a very peculiar case from the Sixth Circuit involving clowns.

Keywords: Administrative Law, Final Agency Action, APA, Bennett v. Spear, Fusion Center, Formalism, Insane Clown Posse, Juggalo