Table of Contents

The Force of Law After Kisor

Beau J. Baumann, Independent

The Case for Chevron Deference to Immigration Adjudications

Patrick J. Glen, Government of the United States of America - Department of Justice

Delay & Irreparable Harm: A Study of Exhaustion Through the Lens of the IDEA

Rosemary Queenan, Albany Law School

Remand and Dialogue in Administrative Law

Christopher J. Walker, Ohio State University (OSU) - Michael E. Moritz College of Law
James Saywell , Jones Day

Nondelegation As Constitutional Symbolism

Kristin E. Hickman, University of Minnesota - Twin Cities - School of Law


U.S. ADMINISTRATIVE LAW eJOURNAL

"The Force of Law After Kisor" Free Download
Stetson Law Review, Vol. 51, 2021 (Forthcoming)

BEAU J. BAUMANN, Independent
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At least two recent Supreme Court cases, Kisor v. Wilkie and Perez v. Mortgage Bankers Association, demonstrate that the Supreme Court is divided on the “force of law.” That phrase was used at the turn of the twentieth century to help courts analogize regulations to statutes. By the New Deal, the “force of law” also became an important concept in the justiciability case law. Later, when the Administrative Procedure Act was enacted, the force of law was baked into § 553, which divides legislative from interpretive rules. The former must go through notice-and-comment rulemaking. The latter needn’t go through notice and comment because they do not carry the force of law.

In Kisor and Perez, the conservative bloc of the Supreme Court argued that when an interpretive rule receives heightened deference, that it then carries the force of law and short-circuits the APA’s structural protections. In Kisor, Justice Kagan batted down this argument with an apparent tautology. This Essay looks back to the pre-APA period to argue that Justice Kagan correctly interpreted the meaning of the force of law concept.

The force of law was used to determine whether a regulated party was accountable to a statute or regulation. This determination involved two questions of statutory and regulatory interpretation: (1) whether Congress delegated lawmaking authority to an agency and (2) whether the agency chose to exercise that authority. If the regulation carried the force of law, the court would apply its strictures directly. If not, the court would look to the underlying statute. This background is unrelated to the modern deference regimes. When a court applies Auer, it does not impose new obligations on regulated parties. In that sense—and from the perspective of the Congress that enacted the APA—one of the two main arguments against Auer deference is mistaken.

"The Case for Chevron Deference to Immigration Adjudications" Free Download
Duke Law Journal Online, Vol. 71, Forthcoming. (2021). Georgetown Law Faculty Publications and Other Works. 2385.

PATRICK J. GLEN, Government of the United States of America - Department of Justice
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Chevron skepticism is in vogue in legal academia, as Professors Shoba Wadhia and Christopher Walker’s recent entry in the genre demonstrates. They place their project within the broader academic trend of arguing for limitations on the application of deference to various administrative decisions, but their aim is ultimately narrower—to show that “this case against Chevron has * * * its greatest force when it comes to immigration.”

The Professors are incorrect. Immigration adjudication presents one of the strongest cases for deference to administrative adjudication. This case is founded in the text of the statute itself and its myriad general and specific delegations of authority to the Attorney General, the expertise of the agency which has honed its interpretive enterprise through adjudicating tens of thousands of cases annually, and the ultimate political accountability of the agency head in immigration adjudication. For these reasons, the Supreme Court has applied Chevron deference to immigration adjudications since the very foundation of that framework. Although they advance an interesting contrarian thesis, the Professors ultimately provide no sound basis for retreating from four decades of established jurisprudence.

"Delay & Irreparable Harm: A Study of Exhaustion Through the Lens of the IDEA" Free Download
North Carolina Law Review, Vol. 99, No. 985, 2021

ROSEMARY QUEENAN, Albany Law School
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As the administrative state expands, and disputes involving important rights are often decided within the administrative process, access to efficient administrative law litigation has become increasingly critical. One procedural aspect that has taken on greater importance is the exhaustion doctrine, which requires litigants to proceed through the often-lengthy administrative process prior to seeking judicial relief. Acknowledging that the exhaustion doctrine plays an important part in preserving the appropriate role for courts in the adjudication of these disputes, courts have long grappled with requests to bypass the exhaustion requirement in various legal contexts, often navigating the tension between the benefits of exhaustion and the harm caused by the procedural delay. While courts have made exceptions to the requirement in certain cases, the law on exhaustion remains unclear and one particularly vexing issue remains: whether courts should insist that litigants exhaust any administrative remedies prior to seeking relief when adherence to the exhaustion doctrine threatens irreparable harm.

This Article examines the lack of clarity in the courts on the law of exhaustion and proposes a legal framework for interpreting the exhaustion requirement in cases where strict adherence to it causes irreparable harm through procedural delay. To highlight the ways in which compliance with the doctrine can lead to irreparable harm, and to explore a potential framework for addressing those cases, this Article focuses on the exhaustion requirement under the Individuals with Disabilities Education Act (“IDEA”), which provides children with disabilities the right to a free and appropriate education. The IDEA is the focus of this Article because it has the potential to impact millions of children enrolled in public schools who have a disability. It also illustrates the need for a path to prompt judicial relief to prevent the threat of irreparable educational harm. While the framework proposed in this Article addresses the exhaustion requirement under the IDEA, it can also serve as a model to interpret exhaustion requirements in other legal contexts where prompt relief is warranted based on irreparable harm caused by the administrative delay.

"Remand and Dialogue in Administrative Law" Free Download
George Washington Law Review, Vol. 89, 2021 Forthcoming
Ohio State Legal Studies Research Paper No. 619
C. Boyden Gray Center for the Study of the Administrative State Research Paper No. Forthcoming

CHRISTOPHER J. WALKER, Ohio State University (OSU) - Michael E. Moritz College of Law
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JAMES SAYWELL , Jones Day
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A bedrock principle of administrative law is that when a court finds an agency has erred, the court generally remands the action for the agency to consider anew (as opposed to the court deciding the matter itself). The conventional understanding is that this ordinary remand rule is part of the suite of judicial deference doctrines in administrative law. In our contribution to the George Washington Law Review’s annual administrative law issue, we argue that this understanding is incomplete—at least when it comes to high-volume agency adjudication. In that context, the vast majority of agency adjudication decisions never make it to federal court. Judicial remands in the cases that do allow the courts to engage in a dialogue with the agency, producing a more systemic effect on the agency adjudication system. Indeed, courts have developed and utilize a variety of tools to engage in a richer dialogue with the agency on remand. Remand, thus, can be a tool for judicial engagement and dialogue, not just one for judicial deference.

This argument, however, assumes that a dialogue between courts and agencies actually takes place—that remand is not just a judicial monologue. This Article explores the empirical realities of that assumption by presenting the findings of two separate studies: a cross-agency study for the Administrative Conference of the United States on agency appellate systems and a FOIA-based study of agency immigration decisions on remand. Although much more empirical work needs to be done, the findings from these studies provide an empirical window into how agencies engage with and respond to courts on remand. In light of these preliminary yet promising findings, we argue that courts (and agencies) should consider how to better engage in a dialogue on remand in order to produce a more systemic effect on high-volume agency adjudication systems.

Note: All of the agency decisions on remand, along with our coding dataset, are publicly available here: https://dataverse.harvard.edu/dataset.xhtml?persistentId=doi:10.7910/DVN/HKBFON.