Administrative Law in the News – Recent Articles
By the Communications Committee
This post links to a wide variety of articles reflecting the breadth and depth of administrative law: a North Carolina entity’s administrative law-related legislative agenda; a new governor’s rule-repeal executive order; AI and regulation; the little-known role of contractors in federal rulemaking; and a Wall Street Journal article about a recent Ohio Supreme Court case eliminating judicial deference to agency interpretations.
For each article, we have provided a link, the title and author, and the opening paragraph or sentence to help you decide if you want to read the article. Note that for some of these articles, a subscription may be required. And, thanks to everyone who suggested articles to include in this post.
In the following article, note the proposed legislative agenda seeking a change to Existing Rules Review:
Guest Opinion: How North Carolina can expand opportunity by Guest Columnist John Hood, January 21, 2023
“Having enacted major reforms of North Carolina’s tax code, regulatory system, budgeting process, transportation funding and education system over the past dozen years, what should the General Assembly do next?”
Special interests Should Not Control Licensing Board Appointments by Steve Slivinski, published January 9, 2023, Opinion Contributor
Note: Introductory paragraphs are not included – they summarize the Dental Board case. The following is the first paragraph that may help you decide if you want to read the article. North Carolina is singled out as one of the states criticized.
“This form of capture by special interests has existed as long as occupational licensing itself. Now, a new first-of-its-kind report by Pacific Legal Foundation has identified an additional and lesser-known form of licensing board control by these active market participants: They have the power to directly choose who sits on these boards in nearly half of all U.S. states.”
Take the Sen. Mike Lee Challenge: Name a federal regulatory agency that’s made your life better, Daily Kos Staff, January 17, 2023
“Utah Sen. Mike Lee has been somewhat adrift since losing his old identity as the only person in Washington who could stand Ted Cruz. On Monday, however, he prodded the public with a new challenge based on his malleable-libertarian beliefs: ‘Please (1) name any federal regulatory agency whose elimination would negatively impact your life, and then (2) specify whether that agency’s necessary functions couldn’t be performed at least as well at the state or local level, or by a non-governmental body,’ Lee tweeted.”
Minor, faceless federal officials would be stripped of their power to regulate in new bipartisan bill by Peter Kasperowicz, January 17, 2023
“A bipartisan group of House lawmakers introduced a bill last week aimed at preventing minor federal officials who were never confirmed by the Senate from imposing billions of dollars of regulatory costs on Americans each year. The “Ensuring Accountability in Agency Rulemaking Act” was put forward by Reps. Ben Cline, R-Va., Jared Golden, D-Maine, and a handful of other Republicans last week. The bill is an attempt to ensure all federal regulations are legally initiated and issued by federal officials who are Senate-confirmed and thus more accountable to American voters.”
ACUS Adopts Recommendation to Improve Precedential Decision Making in Agency Adjudication by Christopher J. Walker, January 19, 2023, Notice & Comment
“At its plenary session in December, the Administrative Conference of the United States (ACUS) voted to adopt a recommendation to improve precedential decision making in agency adjudication. This recommendation is based on my report with Melissa Wasserman and Matt Wiener entitled Precedential Decision Making in Agency Adjudication. Last week, those recommendations were published in the Federal Register here.”
Rapid Responses to Major Questions by Vinzent Will, Jan 11, 2023
Scholar proposes a new fast-track legislative procedure to affirm agency regulatory authority.
“The U.S. Supreme Court’s major questions doctrine has received a significant amount of both praise and criticism. Although some commentators praise the doctrine as a necessary pushback against executive “power grabs,” others scold it as a “deregulatory cudgel.” But no matter what one thinks of its merits, with the Court’s conservative 6-3 supermajority, the doctrine is here to stay.
Accordingly, scholars such as Christopher J. Walker of the University of Michigan Law School are now asking how best to integrate the doctrine into the system of government. In his recent article, Walker argues that Congress should adopt a new streamlined legislative process that would bypass some of the major obstacles to new legislation. As a result, this new procedure would allow lawmakers to respond swiftly to judicial decisions that invalidate agency rules under the major questions doctrine.”
Outcome-Based Cooperative Regulation by Christopher Hodges, January 2, 2023
“We need to cooperate more if we want to solve problems. And society’s problems are only getting bigger, with more risk.”
What is the Future of Regulatory Policy? Claudio Radaelli and Lorenzo Allio
“The OECD’s latest Regulatory Policy Outlook is the most forward-looking yet.
The Organization for Economic Cooperation and Development’s (OECD) core principles of regulatory reform date back to the mid-1990s, with a major consolidation of the policy principles achieved in 2012 with the OECD recommendation on regulatory policy and governance. At that time, the goal of the OECD was twofold: to define good regulatory principles and practices, and to set out a programmatic vision on regulatory reform.”
AI Is Here. How Will Government Use It — and Regulate It? by Donald F. Kettl, January 20, 2023, The Future of What’s Next
“The rise of artificial intelligence (AI) technology has significant implications for state and local governments. One of the main implications is the potential for AI to improve the efficiency and effectiveness of government services. For example, AI-powered chatbots can provide 24/7 customer service for citizens, while machine learning algorithms can analyze large amounts of data to identify patterns and insights that can inform decision-making.”
Lombardo orders freeze on new state regulations, cuts to professional licensing rules by Tabitha Mueller and Sean Golonka, January 12, 2023
“Republican Gov. Joe Lombardo [Nevada] signed an executive order Thursday requiring all executive branch entities to review existing state regulations and recommend at least 10 to be removed by May 1. The order, one of two he signed Thursday aimed at reducing regulatory burdens, also suspends new regulations from any executive agencies, with exceptions for regulations that would affect public health, public safety, pending judicial deadlines and the essential duties of the executive branch, as well as those necessary to comply with federal law and to pursue federal funds.”
Article: Rulemaking By Contract, 74 Admin. L. Rev. 703, by Bridget C.E. Dooling & Rachel Augustine Potter (Footnotes omitted from the quotation.)
“Introduction. The strained – some might even say beleaguered – condition of administrative capacity in the United States is widely acknowledged. Despite steady increases in federal spending, the size of the federal civilian workforce has remained relatively level since about 1960. Faced with growing demands for government services and scarce bureaucratic labor, government has increasingly come to rely on the services of private sector contractors. Contractors have become a significant presence in federal agencies, taking on numerous functions like professional services, logistics, general health care, and information technology.
Contractors’ reach into government is deep – some scholars even describe them as the “shadow” of the federal civilian workforce. Their reach is so deep, in fact, that it touches the notice-and-comment rulemaking process, the core policymaking apparatus within the administrative state. Yet little is known about contractors’ roles in rulemaking. What rulemaking tasks do [*706] contractors actually perform? Do all agencies use contractors to help with their rules? And how does this all intersect with the legal limits in place with respect to both rulemaking and procurement?
This Article summarizes findings from an empirical study we conducted that examined how federal agencies use contractors to support the rulemaking process.”
Panel I: Professors Gillian Metzger, William Buzbee, and Aram Gavoor discussed the issue of deregulation through the lens of judicial decisions, methods of statutory interpretation, and executive actions taken during the Trump and Biden Administrations to modify the scope of administrative authority.
Panel II: Administrative Law Judge Doug Rawald, Professors Kimberly Wehle and Jonas Monast discussed the ways in which uncertainty regarding the administrative state has affected agencies “in real time.”
Judicial Thunder Out of Ohio. The state Supreme Court shreds Chevron-style deference to regulators.
“Judges across the country are rethinking their deference to regulators who stretch the law, and the latest example is thunder out of the Ohio Supreme Court. The Dec. 29 decision deserves more notice as a powerful statement of judicial principles in dealing with an unrestrained bureaucracy.”