Administrative Law Prof Blog

"Depoliticizing Administrative Law" by Miles & Sunstein

If you haven't read at least the abstract to "Depoliticizing Administrative Law", by Thomas J. Miles (Chicago) and Cass R. Sunstein (Harvard), here it is:

A large body of empirical evidence demonstrates that judicial review of agency action is highly politicized, in the sense that Republican appointees are significantly more likely to invalidate liberal agency decisions than conservative ones, while Democratic appointees are significantly more likely to invalidate conservative agency decisions than liberal ones. These results hold for both (a) judicial review of agency interpretations of law and (b) judicial review of agency decisions for "arbitrariness" on questions of policy and fact. On the federal courts of appeals, the most highly politicized voting patterns are found on unified panels, that is, on panels consisting solely of either Democratic or Republican appointees. On the Supreme Court, politicized administrative law is also unmistakable, as the more conservative justices show a distinctive willingness to vote to invalidate liberal agency decisions, and the more liberal justices show a distinctive willingness to vote to invalidate conservative agency decisions. Indeed, it is possible to "rank" justices in terms of the extent to which their voting patterns are politicized. The empirical results raise an obvious question: What might be done to depoliticize administrative law? Three sets of imaginable solutions have promise: (1) self-correction without formal doctrinal change, produced by a form of "debiasing" that might follow from a clearer judicial understanding of the current situation; (2) doctrinal innovations, as, for example, through rethinking existing deference principles and giving agencies more room to maneuver; and (3) institutional change, through novel voting rules and requirements of mixed panels. An investigation of these solutions has implications for other domains in which judges are divided along political lines, and indeed in which nonjudicial officials show some kind of politicized division or bias.

On his Within the Scope blog, E.L. Lipman points out that

Sunstein posits that there is a cohort of close cases – perhaps as many as 1 in every 6 – where a decision on whether the agency's action is sustained or not, is a function of the composition of the appellate panel.

As someone who believes that it is "emphatically the province and duty of the judicial department to say what the law IS," and that it should be a trifle who the appellate panel members ARE, I find these studies chilling. Are we really at the point where we say: "Tell me who has been assigned to the three-judge panel and I’ll tell you whether or not the agency acted lawfully?"

This suggests a fourth "imaginable solution":  That statutes be drafted with clarity sufficient to preclude excessive levels of executive and judicial partisan gamesmanship.  This may require more discipline and responsibility of any Congress and President than they can be realistically expected to muster.  Oh, well.

EMM

Proposed PPE Rule

Recently, the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) published a proposed rule to clarify the requirements for personal protective equipment (PPE) and training for workers.  The proposed rule does not add new compliance obligations for employers, nor are employers required to provide any new type of PPE or training.  Instead, the proposed rule makes it clear that an employer's failure to provide appropriate PPE or training may result in per-instance penalties. Previously, if employers committed multiple violations, OSHA generally would group the violations and propose a single violation.  The proposed rule would allow a different outcome.  It would allow OSHA to issue separate penalties for each violation.  This per instance penalty emphasizes the importance of employers complying with OSHA's PPE rule for each worker.  Moreover, it will likely deter flagrant violators and increase the impact of OSHA's limited resources. OSHA is accepting public comments until September 18, 2008.

You can see the proposed rule at http://edocket.access.gpo.gov/2008/E8-18991.htm

KMD

New administrative law articles

From the Current Index to Legal Publications, University of Washington:

Biering, Raymond A. and Brian S. Biering.  Massachusetts v. EPA:  rescuing Icarus with environmental federalism.  23 J. Envtl. L. & Litig. 35-72 (2008). [L]|[W]

Brian, Daniel.  Student note.  Regulating carbon dioxide under the Clean Air Act as a hazardous air pollutant.  33 Colum. J. Envtl. L. 369-418 (2008). [L]|[W]

Dillard, Joel and Jennifer Dillard.  Fetishizing the electoral process: the National Labor Relations Board's problematic embrace of electoral formalism.  6 Seattle J. for Soc. Just. 819-906 (2008). [L]|[W]

Leibovitch, Emilie H.  Food safety regulation in the European Union: toward an unavoidable centralization of regulatory powers.  43 Tex. Int'l L.J. 429-452 (2008). [L]|[W]

Norris, Tamara Nicole.  Comment.  Lethal speed:  an analysis of the proposed rule to implement vessel speed restrictions and its impact on the declining right whale population as well as the shipping and whale- watching industries.  13 Ocean & Coastal L.J. 339-367 (2008). [L]|[W]

Robards, Martin and Julie Lurman Joly.  Interpretation of "wasteful manner" within the Marine Mammal Protection Act and its role in management of the Pacific walrus.  13 Ocean & Coastal L.J. 171-232 (2008). [L]|[W]

Rudd, Jeffrey.  Regulating the impacts of engineered nanoparticles under TSCA:  shifting authority from industry to government.  33 Colum. J. Envtl. L. 215-282 (2008). [L]|[W]

Sherringham, Tia.  Comment.  Mice, men, and monsters:  opposition to chimera research and the scope of federal regulation.  96 Cal. L. Rev. 765- 800 (2008). [L]|[W]

Short, Jodi L. and Michael W. Toffel.  Coerced confessions:  self-policing in the shadow of the regulator.  24 J.L. Econ. & Org. 45-71 (2008). [L]|[W]

Improving State Governance:  Critical Issues in State Administrative Law. Articles by Charles Koch, Jr., Ann Graham, Christopher B. McNeil, Richard P. McNelis, Ann Wise, F. Scott Boyd, Dru Stevenson, Brandee Ketchum and Andrew Olsan.  68 La. L. Rev. 1095-1376 (2008). [L]|[W]

 
• Koch, Charles, Jr.  Administrative judges' role in developing social policy.  68 La. L. Rev. 1095-1104 (2008). [L]|[W]
 
• Graham, Ann.  Chevron lite:  how much deference should courts give to state agency interpretation?  68 La. L. Rev. 1105-1119 (2008). [L]|[W]
 
• McNeil, Christopher B.  The public's right of access to some kind of hearing:  creating policies that protect the right to observe agency hearings.  68 La. L. Rev. 1121-1144 (2008). [L]|[W]
 
• McNelis, Richard P.  Problematic application of Florida administrative law to police power public health actions.  68 La. L. Rev. 1145-1167 (2008). [L]|[W]
 
• Wise, Ann.  Louisiana's Division of Administrative Law:  an independent administrative  hearings tribunal.  68 La. L. Rev. 1169-1200 (2008). [L]|[W]
 
• Boyd, F. Scott.  Looking glass law:  legislation by reference in the states.  68 La. L. Rev. 1201-1283 (2008). [L]|[W]
 
• Stevenson, Dru.  Privatization of state administrative services.  68 La. L. Rev. 1285-1312 (2008). [L]|[W]
 
• Ketchum, Brandee and Andrew Olsan.  Louisiana administrative law:  a practitioner's primer.  68 La. L. Rev. 1313-1376 (2008). [L]|[W]

Symposium.  Combating Climate Change on the Regional Level.  West Coast Policy and Litigation.  Articles by Andrew Long, James L. Olmsted and Dan Galpern.  23 J. Envtl. L. & Litig. 73-222 (2008). [L]|[W]

 
• Long, Andrew.  Standing & consensus:  globalism in Massachusetts v. EPA. 23 J. Envtl. L. & Litig. 73-123 (2008). [L] |[W]
 
• Olmsted, James L.  The global warming crisis:  an analytical framework to regional responses.  23 J. Envtl. L. & Litig. 125-189 (2008). [L ]|[W]
 
• Galpern, Dan.  Climate change 101:  urgency and response.  23 J. Envtl. L. & Litig. 191-222 (2008). [L ]|[W]

EMM

New "Administrative" Provisions Of The Consumer Product Safety Improvement Act of 2008

In their client bulletin "New 'Administrative' Provisions Of The Consumer Product Safety Improvement Act of 2008 Cause Concern For Manufacturers", Sarah “Sally” L. Olson and James P. Dorr of Wildman, Harrold, Allen & Dixon LLP review the substantive as well as procedural changes in the Consumer Products Safety Commission made by this Act.  Although written for manufacturers and others selling consumer products, it appears to be a quick but thorough examination of changes in substantive rights and obligations styled in the Act as "administrative" changes.  Statutes and regulations like this can be traps for the unwary.  Pointed out by Lexology.

EMM

Yes, Virginia, regulations can be written in English

We present the following Treasury regulations rewrite from Blog @ Legalwriting.net, Wayne Schiess's legal writing blog, with his permission.

Original

Employer contributions to employees' HSAs are made through a section 125 cafeteria plan and are subject to the section 125 cafeteria plan nondiscrimination rules and not the comparability rules if under the written cafeteria plan, the employees have the right to elect to receive cash or other taxable benefits in lieu of all or a portion of an HSA contribution (meaning that all or a portion of the HSA contributions are available as pre-tax salary reduction amounts), regardless of whether an employee actually elects to contribute any amount to the HSA by salary reduction.

An average sentence length of 94 words (a single sentence of 94 words) with a Flesch readability score of 0 and a Flesch-Kincaid grade level of 43. (Is that possible?)

Revision

Employers can contribute to their employees’ Health Savings Accounts through a section 125 cafeteria plan. Normally, the comparability rules apply to these contributions. But if the employees can get cash or other taxable benefits instead of the employer’s contributions, then the nondiscrimination rules apply in place of the comparability rules. This is true whether or not any employees actually have money deducted from their salaries on a pre-tax basis.

An average sentence length of 17 with a Flesch score of 27 and a Flesch-Kincaid grade level of 14.

EMM

Virelli on scientific research as the basis of administrative decisions

Louis J. Virelli III of Stetson University College of Law recently published on SSRN an article entitled "Political" Science:  Peer Reviewer as Agents of Administrative Legitimacy; the article explores the increasingly use (and misuse) of scientific research to support public policy decisions.  Abstract:

The alleged misuse of scientific information to support public policy decisions has become one of the most prominent and controversial topics in American politics. Perceived government misuse of scientific data in highly controversial areas such as global warming, environmental protection, stem cell research, and contraception threatens to lead us not only toward policy positions that are not consistent with scientific reality, but perhaps more importantly into a political environment where science-based policy decisions are no longer viewed as legitimate within our constitutional democracy. Due in part to these concerns about scientific integrity in administrative decisions, there is also a significant amount of attention being paid to scientific peer review in the administrative process ("administrative peer review"), a movement highlighted by a 2005 OMB bulletin mandating that administrative agencies obtain peer review of all important scientific information that they disseminate to the public.

This article addresses the cross-section of these two issues through a normative analysis of peer review's impact on administrative legitimacy. To date, all of the available commentary on peer review in the administrative context has been limited to treating peer review as a monolithic enterprise. This article departs from that approach by asking the next logical questions-what model(s) of peer review are available to administrative agencies, and which of these is best suited to promote legitimacy in administrative decisions-and by creating a framework for answering them, first through the development of four distinct models of administrative peer review, and then by establishing a series of normative approaches, including a cost-benefit analysis, through which to evaluate each of the models. In addition to providing a new theoretical context in which to consider peer review, the results of the analyses are interesting in that they overwhelmingly support the multifaceted treatment of peer review developed here and raise serious questions about the most commonly used model of administrative peer review.

For the article in its entirety.

KP

Office of Advocacy of the U.S. Small Business Administration releases first six month status report of r3 initiative

On August 28, 2008, the U.S. Small Business Administration released its first six month status report of its long-term Regulatory Review and Reform (r3) initiative designed to review and reduce the costs of ineffective and outdated regulations.

The report is available here.

KP

Adler on Free Enterprise Fund v. PCAOB

Jonathan Adler at The Volokh Conspiracy quotes from and comments on "Free Enterprise Fund v. PCAOB -- Humphrey's Executor Squared", a recent D.C. Circuit decision on the constitutionality of someone other than the President or under presidential control having authority to remove a senior official who can be removed "for cause" only by statute.

EMM

Sales and Adler on Chevron deference and agency jurisdiction

Nathan Alexander Sales (George Mason) and Jonathan H. Adler (Case Western Reserve) have posted "The Rest is Silence: 'Chevron' Deference, Agency Jurisdiction, and Statutory Silences" on SSRN.  Abstract:

Should agencies receive Chevron deference when interpreting the reach of their own jurisdiction? This article argues that, in general, they should not. We begin by identifying and detailing the various different types of jurisdictional questions that may arise in statutory interpretation. The article then surveys how the Supreme Court and lower federal courts have analyzed these different aspects of the jurisdiction problem, with a particular attention to statutory silences. The Court's Chevron jurisprudence strongly suggest that deference to agency determinations of their own jurisdiction should be disfavored, particularly where a statute is silent (and not merely ambiguous) about the existence of agency jurisdiction. In particular, we argue that courts should deny Chevron deference regardless of whether an agency is asserting or disclaiming jurisdiction. This no-deference rule should apply in both existence- and scope-of-power cases, but courts should continue to show deference where agencies assert the existence of a factual predicate that triggers jurisdiction. We support our proposal with arguments drawing on both traditional administrative law norms and public choice analyses of the incentives faced by agencies and other relevant actors. While there are strong counterarguments to our proposal - particularly the potential difficulty in distinguishing between jurisdictional and non-jurisdictional questions - this article maintains that denying deference in the jurisdictional context is desirable and consistent with Chevron principles.

EMM

Symposium on Treasury's Blueprint for a Modernized Financial Regulatory Structure

The Legal Scholarship Blog has posted an announcement from the University of Memphis Law Review that they will hold a symposium on the Treasury Department’s Blueprint for a Modernized Financial Regulatory Structure on Feb. 20, 2009.  Scholars wishing to submit papers should do so by Nov. 1, 2008, although later papers will be considered on a case by case basis.

LT

Jurisdiction over non-final agency action

In "District Court Rules on Jurisdiction and Non-Final Agency Action", the FDA Law Blog points out a recent opinion from the U.S. District Court for the District of Columbia distinguishing between the statutory exclusive jurisdiction of the courts of appeals over final Food and Drug Administration decisions in matters like this one and the jurisdiction of the district courts over agency actions before the decisions are final.  In this case, the plaintiff was seeking a preliminary injunction against a pre-hearing suspension.  The District Court found that it had jurisdiction, then denied the injunction on other grounds.

Another good find by the FDA Law Blog.

EMM

"Mere unevenness in the application of a sanction will not render its application in a particular case unwarranted in law"

The FDA Law Blog points out a recent D.C. Circuit opinion confirming that under the Administrative Procedure Act (APA) an agency’s choice of sanction will be overturned only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”, and that “mere unevenness in application” is not enough to make the decision “not in accordance with law”.

The Court found noteworthy that the practitioner failed to demonstrate that DEA has a “consistent” policy of allowing a practitioner to retain his registration under similar circumstances and “never accepted responsibility for his misconduct,” nor “cooperated with DEA.”

“DEA Actions Upheld by D.C. Court of Appeals”

EMM

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Updated Regulations for ADA

On Friday, May 30, 2008, Attorney General Michael B. Mukasey signed proposed regulations to revise the Department’s ADA regulations, including its ADA Standards for Accessible Design. On Tuesday, June 17, 2008, the proposed regulations were published in the Federal Register. The proposed regulations consist of a notice of proposed rulemaking to amend the ADA regulation for State and local governments, a notice of proposed rulemaking to amend the ADA regulation for public accommodations and commercial facilities, a Regulatory Impact Analysis, and two supporting appendices.

You can find the NPRM here.

KP/EH

Agency "advisory" has no preemptive effect

The Food and Drug Administration (FDA) and the Environmental Protection Agency (EPA) published a "public advisory" on methylmercury in fish, suggesting that the benefits of eating fish outweighed any negative risks.  The FDA Law Blog points out in "On Tuna, Methylmercury, and Preemption, FDA’s Net Comes up Empty", that:

FDA’s public advisory is just that – a public advisory.  It is carefully worded so as not to be a guidance document subject to the requirements of the agency’s Good Guidance Practices regulation in 21 C.F.R. § 10.115 (i.e., it does not purport to be either an interpretation of statutory or regulatory requirements, or a statement of policy).

The FDA Law Blog post goes on to describe the blunt response of the U.S. Court of Appeals for the Third Circuit in Fellner v. Tri-Union Seafoods, filed August 19, 2008, when the FDA attempted to use the public advisory to preclude state law seafood labeling requirements (conflict preemption).  The Court says that nothing the FDA has done constitutes federal law with which a state failure-to-warn claim might be in conflict.  The lesson is that an agency cannot have it both ways:  When it dodges rulemaking procedures to avoid public comment, the result has no preemptive effect.

EMM

Agency Scientists Undermined by White House

ProPublica, a non-profit organization dedicated to journalism in the public interest, is reporting that the White House and the office of the Vice President have pressured the National Marine Fisheries Service to ignore the recommendations of its own agency scientists and relax protections for the North Atantic right whale.  According to the article:

The Bush administration has not been shy in questioning the conclusions of government scientists. Years-long rulemaking processes have been shunted by White House questions and objections, reports and congressional testimony heavily edited, and in some cases troublesome scientists entirely removed from areas of responsibility. In one survey, nearly half of EPA scientists who responded complained of political interference.

Here is another episode. Yesterday, the National Marine Fisheries Service issued new proposed guidelines for the protection of North Atlantic right whales. According to the new rules, ships will have to slow to 10 nautical miles per hour within 23 miles of certain ports at certain times of year. While a significant measure to protect the whales, of which only about 300 remain, prior guidelines had extended the protected zone to about 34.5 miles from shore.

The reason for the restriction was pretty straightforward: fast moving ships had killed about 20 whales in the past 20 years, government scientists found. The whales, in fact,earned the name "right whales" because they were such an easy quarry for whalers.

For four years, government scientists studied right whale deaths in order to develop rules to protect them. But when they finally presented the White House with a proposed rule in 2007, they found the administration unimpressed. According to correspondence produced by House oversight committee Chair Henry Waxman (D-CA), the vice president's office in particular had been a particularly harsh critic, complaining that scientists had no "hard data" to support the guidelines. Officials in the White House Council of Economic Advisers had apparently crunched their own numbers on right whale collisions, and their conclusions jibed with those reached by the shipping industry.

LT