Three Wrong Turns in Agency Adjudication

20 Pages Posted: 11 Jan 2021

See all articles by Aaron Nielson

Aaron Nielson

Brigham Young University - J. Reuben Clark Law School

Date Written: January 6, 2021

Abstract

Agency adjudication is a longstanding but imperfect feature of U.S. law. In fact, the United States is still suffering the consequences of three wrongs turns in agency adjudication made between 1945 and 1947: the Supreme Court’s inclusion of careless language in Bowles v. Seminole Rock & Sand Co.; Congress’s failure to flesh out key aspects of the Administrative Procedure Act’s adjudication provisions; and the Supreme Court’s overly broad endorsement of retroactivity in the second SEC v. Chenery. Especially when combined, these three wrong turns have made agency adjudication more controversial than it needs to be.

This short Article examines these wrong turns and two efforts at course correction from 2019, namely, the Supreme Court’s decision in Kisor v. Wilkie and a pair of executive orders that touch on agency enforcement. These reforms have the potential to mitigate some of the harmful effects of the wrong turns from the 1940s, but they would not have been necessary had the Supreme Court and Congress made better decisions initially. This Article thus concludes by offering lessons from what went wrong so that history will not repeat itself.

Keywords: administrative law, APA, Administrative Procedure Act, agency adjudication, Supreme Court

Suggested Citation

Nielson, Aaron, Three Wrong Turns in Agency Adjudication (January 6, 2021). George Mason Law Review, 2021 Forthcoming, C. Boyden Gray Center for the Study of the Administrative State Research Paper No. 21-03, BYU Law Research Paper No. 21-02, Available at SSRN: https://ssrn.com/abstract=3761259

Aaron Nielson (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

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