Interring the Nondelegation Doctrine
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Informal Rulemaking by Settlement Agreement
Informal Rulemaking by Settlement Agreement JEFFREY M. GABA* The process of informal rulemaking by the federal government is familiar. Af- ter determining that a regulation is necessary, a government agency prepares a proposal which it publishes for public comment. The agency then reviews the comments, decides on the content of the final rule, and publishes the final rule with a statement of basis and purpose explaining its decision. The rule is gener- ally effective thirty days after publication, and the public is blessed with one more government regulation.1 Although the description of this process is familiar, it may be incomplete. If the experience of the Environmental Protection Agency (EPA) is a guide,2 pro- mulgation of regulations pursuant to the notice and comment procedure is merely one step of rulemaking. In many cases, development of these "final" * Assistant Professor of Law, Southern Methodist University. B.A. 1972, University of California, Santa Barbara; J.D. 1976, Columbia University. Attorney, Office of General Counsel, U.S. Environmen- tal Protection Agency, 1977-1981. The author would like to express his appreciation to Southern Meth- odist University for providing financial assistance for preparation of this article. The author would also like to thank the people, both at the EPA and in private practice, who devoted time to discuss their experiences with and insights into the settlement process. Finally, the author would like to express his appreciation to Ms. Rosemary Marek for assistance and support in preparing this article. 1. Administrative Procedure Act § 4, 5 U.S.C. § 553 (1982); see infra notes 85 to 90 and accompanying text (discussing Act's requirements). -
EU Agencies, Common Approach and Parliamentary Scrutiny
EU Agencies, Common Approach and Parliamentary Scrutiny European Implementation Assessment STUDY EPRS | European Parliamentary Research Service Editor: Ron Korver Ex-Post Evaluation Unit PE 627.131 – November 2018 EN EU Agencies, Common Approach and Parliamentary Scrutiny Study Decentralised agencies were set up on a case-by-case basis over the years, to respond to emerging individual policy needs. Currently there are 36 of them and they have been operating under very diverse conditions. In 2012, the European Parliament, the Council of the European Union and the European Commission sought to rectify this by adopting a ‘Joint Statement’ and a comprehensive set of guiding principles – a ‘Common Approach’ – to make the agencies more coherent, effective and accountable. In the light of an expected revision of these guiding principles, the European Parliament’s Committee on Constitutional Affairs (AFCO) will produce an implementation report on the functioning of decentralised European agencies. The letter to the Conference of Committee Chairs (CCC) was sent on 11 April and the Conference of Presidents endorsed the request on 31 May 2018. In this framework, the Ex-Post Evaluation Unit (EVAL) provides expertise on the implementation of the agreed guidelines in the form of a European implementation assessment (EIA). This EIA was drawn up by Professor Ellen Vos of Maastricht University, at the request of the Ex-post Evaluation Unit of EPRS. It provides an overview of the different decentralised EU agencies according to a number of criteria; including their functions, legal bases, sources of financing, respective roles of Parliament, Council, Commission and Member States, stakeholder involvement and transparency. -
Justice Scalia, the Nondelegation Doctrine, and Constitutional Argument William K
Notre Dame Law Review Volume 92 | Issue 5 Article 9 5-2017 Justice Scalia, the Nondelegation Doctrine, and Constitutional Argument William K. Kelley Notre Dame Law School Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Judges Commons Recommended Citation 92 Notre Dame L. Rev. 2107 (2017) This Article is brought to you for free and open access by the Notre Dame Law Review at NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized editor of NDLScholarship. For more information, please contact [email protected]. \\jciprod01\productn\N\NDL\92-5\NDL509.txt unknown Seq: 1 15-JUN-17 10:42 JUSTICE SCALIA, THE NONDELEGATION DOCTRINE, AND CONSTITUTIONAL ARGUMENT William K. Kelley* INTRODUCTION Justice Antonin Scalia wrote two major opinions applying the nondelega- tion doctrine: in Mistretta v. United States,1 he wrote a lone dissent concluding that Congress’s establishment of the United States Sentencing Commission was unconstitutional because the Commission had been assigned no function by Congress other than the making of rules, the Sentencing Guidelines. Such “pure” lawmaking by a “junior-varsity Congress,” Justice Scalia con- cluded, was inconsistent with the Constitution’s basic division of powers.2 In Whitman v. American Trucking Ass’ns,3 he wrote for a unanimous Court upholding a very broad delegation of rulemaking power to the Environmen- tal Protection Agency (EPA), and along the way acknowledged that Con- gress’s power to assign policymaking discretion to agencies extended to raw exercises of discretion from among a range of possibilities that was appar- ently genuinely unlimited. -
Notice of Proposed Rulemaking (NPRM)
43162 Federal Register / Vol. 85, No. 137 / Thursday, July 16, 2020 / Proposed Rules PART 39—AIRWORTHINESS AD. Send your proposal to: Matt Fuller, address: Federal Trade Commission, DIRECTIVES Senior Aviation Safety Engineer, Safety Office of the Secretary, 600 Management Section, Rotorcraft Standards Pennsylvania Avenue NW, Suite CC– ■ 1. The authority citation for part 39 Branch, FAA, 10101 Hillwood Pkwy., Fort 5610 (Annex C), Washington, DC 20580, continues to read as follows: Worth, TX 76177; telephone 817–222–5110; email [email protected]. or deliver your comment to the Authority: 49 U.S.C. 106(g), 40113, 44701. (2) For operations conducted under a 14 following address: Federal Trade CFR part 119 operating certificate or under Commission, Office of the Secretary, § 39.13 [Amended] 14 CFR part 91, subpart K, the FAA suggests Constitution Center, 400 7th Street SW, ■ 2. The FAA amends § 39.13 by adding that you notify your principal inspector, or 5th Floor, Suite 5610 (Annex C), the following new airworthiness lacking a principal inspector, the manager of Washington, DC 20024. directive (AD): the local flight standards district office or FOR FURTHER INFORMATION CONTACT: certificate holding district office before Julia Airbus Helicopters: Docket No. FAA– Solomon Ensor (202–326–2377) or 2020–0652; Product Identifier 2019–SW– operating any aircraft complying with this AD through an AMOC. Hampton Newsome (202–326–2889), 066–AD. Attorneys, Division of Enforcement, (a) Applicability (g) Additional Information Bureau of Consumer Protection, Federal This AD applies to Airbus Helicopters The subject of this AD is addressed in Trade Commission, Room CC–9528, 600 Model AS332C, AS332C1, AS332L, and European Union Aviation Safety Agency Pennsylvania Avenue NW, Washington, AS332L1 helicopters, certificated in any (previously European Aviation Safety DC 20580. -
The Nondelegation Doctrine: Alive and Well
\\jciprod01\productn\N\NDL\93-2\NDL204.txt unknown Seq: 1 28-DEC-17 10:20 THE NONDELEGATION DOCTRINE: ALIVE AND WELL Jason Iuliano* & Keith E. Whittington** The nondelegation doctrine is dead. It is difficult to think of a more frequently repeated or widely accepted legal conclusion. For generations, scholars have maintained that the doctrine was cast aside by the New Deal Court and is now nothing more than a historical curiosity. In this Article, we argue that the conventional wisdom is mistaken in an important respect. Drawing on an original dataset of more than one thousand nondelegation challenges, we find that, although the doctrine has disappeared at the federal level, it has thrived at the state level. In fact, in the decades since the New Deal, state courts have grown more willing to invoke the nondelegation doctrine. Despite the countless declarations of its demise, the nondelegation doctrine is, in a meaningful sense, alive and well. INTRODUCTION .................................................. 619 R I. THE LIFE AND DEATH OF THE NONDELEGATION DOCTRINE . 621 R A. The Doctrine’s Life ..................................... 621 R B. The Doctrine’s Death ................................... 623 R II. THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION ....... 626 R III. THE PERSISTENCE OF THE NONDELEGATION DOCTRINE ...... 634 R A. Success Rate .......................................... 635 R B. Pre– and Post–New Deal Comparison .................... 639 R C. Representative Cases.................................... 643 R CONCLUSION .................................................... 645 R INTRODUCTION The story of the nondelegation doctrine’s demise is a familiar one. Eighty years ago, the New Deal Court discarded this principle, and since then, this once-powerful check on administrative expansion has had no place in our constitutional canon. -
Hereby Neutering—The Doctrines That Serve to Subject Administrative Agencies to the Rule of Law
HARVARD JOURNAL of LAW & PUBLIC POLICY VOLUME 42, NUMBER 3 SUMMER 2019 ARTICLES MASTERPIECE CAKESHOP AND THE FUTURE OF RELIGIOUS FREEDOM Mark L. Movsesian ................................................................. 711 THE SICKNESS UNTO DEATH OF THE FIRST AMENDMENT Marc O. DeGirolami ................................................................ 750 YAKUS AND THE ADMINISTRATIVE STATE James R. Conde & Michael S. Greve. ....................................... 807 CORPUS LINGUISTICS AND “OFFICERS OF THE UNITED STATES” James C. Phillips, Benjamin Lee & Jacob Crump. ................... 871 NOTES GIVE VETERANS THE BENEFIT OF THE DOUBT: CHEVRON, AUER, AND THE VETERANS CANON Chadwick J. Harper .................................................................. 931 THE ORIGINAL MEANING AND SIGNIFICANCE OF EARLY STATE PROVISOS TO THE FREE EXERCISE OF RELIGION Branton J. Nestor ..................................................................... 971 HARVARD JOURNAL of LAW & PUBLIC POLICY Editor-in-Chief RYAN PROCTOR Deputy Editor-in-Chief Articles Editors CHADWICK HARPER Managing Editors HAYLEY EVANS BRAD BARBER DANIEL JOHNSON WILL COURTNEY Executive Editors KEES THOMPSON ANNIKA BOONE GRAHAM CARNEY Deputy Managing Editors Assistant Articles Editors RYAN FOLIO NICOLE BAADE NICK AQUART CHANSLOR GALLENSTEIN CHASE BROWNDORF AARON HSU JORDAN GREENE HUGH DANILACK PARKER KNIGHT III KEVIN KOLJACK Articles Board VINCENT LI BEN FLESHMAN GRANT NEWMAN Notes Editors ANASTASIA FRANE DAVID RICHTER AARON GYDE JOSHUA HA SAM WILLIAMS BRANTON NESTOR JAMES -
Rulemaking Cooperation Guidelines for the FAA and the EASA
Rulemaking Cooperation Guidelines for the Federal Aviation Administration and the European Aviation Safety Agency Background: The Agreement between the United States of America and the European Union on cooperation in the regulation of civil aviation safety (the “Agreement”) requires that the Federal Aviation Administration (“FAA”) and the European Aviation Safety Agency (“EASA”) develop and adopt procedures for regulatory cooperation in civil aviation safety and environmental testing and approvals. The FAA and EASA (the “Participants”) have determined that they should actively promote mutual rulemaking cooperation to maintain and further improve the harmonisation of their rules within the scope of Articles 2.B and 6 of the Agreement. The Participants understand that harmonisation can best be achieved through effective communication during the definition and early stages of implementation of their respective rulemaking programmes. They also believe they should make the best use of scarce available resources to produce rules, and that cooperation in this field can be furthered without affecting their independence when deciding on the final rules they best see fit to fulfil their statutory obligations. Therefore, these Guidelines are not intended to create binding obligations under international law. Additionally, no provision of this document should be construed to impair the authority of the FAA or EASA to develop and promulgate aviation regulations within the limits of their enabling legislation and regulations. Page 1 of 7 I. Objectives 1) These Guidelines establish the process through which the FAA and EASA intend to promote rulemaking co-operation in the early stages of the rulemaking process. 2) The objectives of this rulemaking cooperation arrangement are to: i. -
No Law to Apply”: Uniting the Current Court in the Context of Apa Reviewability
BEYOND “NO LAW TO APPLY”: UNITING THE CURRENT COURT IN THE CONTEXT OF APA REVIEWABILITY In back-to-back Supreme Court Terms, § 701(a)(2) of the Administrative Procedure Act1 (APA) has returned to the forefront. While the APA generally allows anyone “adversely affected or aggrieved by agency action” to seek judicial review,2 the APA makes agency action unreviewable under § 701(a)(1) if the organic statute “preclude[s] judicial review,”3 or under § 701(a)(2) if the “agency action is committed to agency discretion by law.”4 Two recent cases, Department of Commerce v. New York5 and Department of Homeland Security v. Regents of the University of California,6 featured a divide between Chief Justice Roberts, who held that the relevant agency actions were unlawful be- cause they were “arbitrary and capricious” under § 706 of the APA, and Justice Alito, who contended that the agency actions were not reviewa- ble at all because of § 701(a)(2).7 The now-recurring dispute between Chief Justice Roberts and Justice Alito on the scope of § 701(a)(2) exemplifies broader divisions on the Court. While some scholars have claimed that the “conservative” Justices share a unified approach that achieves conservative political victories,8 such analysis ignores meaningful differences among the Justices in their understandings of the proper role of the judiciary. Specifically, Professor Adrian Vermeule has helpfully distinguished “Ar- ticle II conservatives” from “Article III conservatives.”9 On Vermeule’s view, Article II conservatives are generally “deferential to presidential ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 5 U.S.C. §§ 551, 553–559, 701–706. -
The John M. Olin Fellowships and the Advancement of Conservatism in Legal Academia
THE JOHN M. OLIN FELLOWSHIPS AND THE ADVANCEMENT OF CONSERVATISM IN LEGAL ACADEMIA “[I]t is merely a question of time until the views now held by the intellectuals become the governing force of politics.”1—F.A. Hayek INTRODUCTION In his 2008 book The Rise of the Conservative Legal Movement, Johns Hopkins Professor Steven M. Teles stated, “It is still too early to tell whether the [John M.] Olin Fellows2 program has been effective, and in any case it is very difficult to disentangle the impact of the program from the influence of a changed le- gal culture or greater willingness of law schools to consider hir- ing conservatives.”3 The fellowship program, which provides conservatives or moderates interested in entering the legal academy with a one to two year, fully-funded position at a law school,4 is a joint venture of sorts between the Federalist Society and the John M. Olin Foundation, an organization better known in law schools for its advancement of law and econom- ics programs. Since 1997, the John M. Olin Fellowship has sought to encourage and assist conservatives and libertarians in becoming law professors.5 In investigating the theory that a changed legal culture at least partially explained the John M. Olin Fellows’ placement success- es in the academy, Professor Teles looked to Harvard Law School and cited then-Dean Elena Kagan’s hiring of three con- servatives to the law school faculty—Professors John F. Man- ning, Jack Goldsmith, and Adrian Vermeule.6 During her tenure, 1. F.A. Hayek, The Intellectuals and Socialism, in THE INTELLECTUALS: A CONTRO- VERSIAL PORTRAIT 371 (George B. -
Rulemaking 101- Process and Judicial Review
Andrew Emery Principal The Regulatory Group, Inc. Arlington, VA Jane Luxton Partner Pepper Hamilton Washington, DC Aditi Prabhu Attorney-Adviser Environmental Protection Agency Washington, DC 1 The agency process for formulating, amending, or repealing a rule 2 Administrative Procedure Act (APA) 1946 ◦ 5 U.S.C. Chs. 5 and 7 Substantive statutes ◦ Govern if specify procedure ◦ E.g., OSH Act, TSCA, CAA, FTCA Other procedural statutes, such as: ◦ Regulatory Flexibility Act (RFA) ◦ Paperwork Reduction Act (PRA) ◦ Federal Advisory Committee Act (FACA) ◦ Congressional Review Act (CRA) 3 E.g.: EO 12866, Regulatory Planning & Review EO 13563, Improving Regulation and Regulatory Review EO 13132, Federalism 4 It’s all about FAIRNESS! ◦ Limiting executive power and preventing “secret law” ◦ Due process: notice & opportunity to be heard What laws govern the rulemaking at issue? 5 • Federal Register publication required for -- – Agency organization statement, procedures, other information – Substantive and procedural rules – Statements of general policy – Interpretations of general applicability – Amendment, revision, or repeal of the foregoing – Public not bound if agency fails to publish – Exception: actual and timely notice 6 • Available for public inspection and copying: – Final opinions and orders from adjudications – Statements of policy and interpretations not published in the Federal Register – Administrative staff manuals and instructions to staff that affect a member of the public – Index and copies of all FOIA records likely to become the subject of subsequent requests • FOIA 7 8 Agency statement of future effect, designed to implement, interpret, or prescribe law or policy. Informal Rulemaking (5 U.S.C. § 553) ◦ Notice & comment (N&C) rulemaking Formal Rulemaking (5 U.S.C. -
The Death of Judicial Conservatism
University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 2009 The Death of Judicial Conservatism David A. Strauss Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation David A. Strauss, "The Death of Judicial Conservatism," 4 Duke Journal of Constitutional Law and Public Policy 1 (2009). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. THE DEATH OF JUDICIAL CONSERVATISM DAVID A. STRAUSS* If we are talking about what happened during the Bush Administration, 'The Death of Judicial Conservatism" looks like it is either a misprint or the deluded ramblings of a liberal who did not get the memo. But I think it is fair to say that one of the lessons we have learned in the wake of the Bush Administration's appointments to the Supreme Court is that judicial conservatism no longer exists in any significant form. Or at least so I argue here. To say that judicial conservatism has died is not to say that its opposite, judicial liberalism or progressivism, has flourished. It is clearer than ever that people who hoped for the revival of the Warren Court-a court that had an agenda to be at the forefront of what it considered to be social reform in a generally liberal direction-had better give up that hope for at least a generation. -
The Credible Executive
University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 2007 The Credible Executive Eric A. Posner Adrian Vermeule Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Eric Posner & Adrian Vermeule, "The Credible Executive," 74 University of Chicago Law Review 865 (2007). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. The Credible Executive Eric A. Posnert andAdrian Vermeulett Legal and constitutional theory has focused chiefly on the risk that voters and legislators will trust an ill-motivated executive. This Article addresses the risk that voters and legislators will fail to trust a well-motivated executive. Absent some credible signal of benign motivations, voters will be unable to distinguish good from bad executives and will thus withhold authority that they would have preferred to grant, making all concerned worse off We suggest several mechanisms with which a well-motivated executive can credibly signal his type, including independent commis- sions within the executive branch; bipartisanshipin appointments to the executive branch,or more broadly the creation of domestic coalitions of the willing; the related tactic of counterpartisanship, or choosing policies that run against the preferences of the president's own party; commitments to multilateralaction in foreign policy; increasingthe transparency of the executive's decisionmaking processes; and a regime of strict liability for executive abuses. The main tradeoff or cost is that increasingcredibility tends to diminish the President'scontrol; in light of this tradeoff we examine the conditions under which these mechanisms succeed or fail, with historicalexamples.