Welcome everybody to tonight’s constitutional conversation. It’s my pleasure and privilege to introduce Professor Emily Bremer who is a professor of administrative law and civil procedure at Notre Dame Law School. And her topic is extremely timely. If you’re reading the newspapers, you’ll know that almost every day there is a case in which the intersection of administrative law and constitutional law is posing problems.

What about. What about universal injunctions? What about, what is the, does the Administrative Procedure Act give courts the right to order the administration to spend money? It’s just one, one novel question after another in this intersection and professor Bremer’s provocative title.

For tonight. Tonight is to ask, is administrative law anything other than just constitutional law? I have a guess that the answer to that is gonna be yes. No. I’m guessing wrong, but we won’t have to guess after we hear from her. So please join me in welcoming Emily Bremer. Thank you. It’s really a pleasure to be here.
Yeah, so I’m gonna talk today. This seems really loud. Is it too loud? Okay. On the topic of whether or not administrative law is just a species of constitutional law. And by way of sort of background and explanation, I am a weirdo. I fell in love with constitutional law as a sophomore in college and decided that I wanted to be a law professor as a consequence.

But very few jobs in Con Law. So I ended up doing administrative law and one of my very first published articles was an article applying. Forget this British constitutional theory to American administrative law and arguing that administrative law is part of our unwritten constitutional order. And now I find myself in a situation where I teach administrative law.

And actually what I’m gonna be arguing for you today is that yes, it sure seems like increasingly administrative law is entirely about constitutional questions, but actually I think we should reconsider that and reorient administrative law. To focus more on the work of administrative agencies, on the ground realities and the day-to-day work of bringing into the real world the promises that Congress and the President have made to the American people when they enact legislation by ensuring that we have fair and faithful execution of our laws.

But the reality is I don’t think that’s where administrative law is as a field right now. And I’m gonna talk, I’m gonna focus my remarks actually on explaining some of the things that I think contribute. To that reality today. And I wanna start off at the outset by acknowledging that we’re in a weird moment, right?

It has felt like administrative law has been in some flux, shall we say for actually a good number of years. And right now that feels really acute. Every day you can read the newspaper and there’s something about administrative agencies, which is just. People not the way it was when I was in law school.

And and I think that we’re likely to be in for a bit of a wild ride over the next few years as the cases that are being set up are litigated by the courts and some of these decisions continue to come out. And so I wanna acknowledge at the outset that it’s a weird time to be suggesting that maybe administrative law should focus less on these constitutional questions.

And I appreciate that the moment we are in might present some challenges to my thesis, but actually I think it also presents an opportunity I. And there actually may be a possibility that some of the heat could be brought down if we refocused on doing the work of the government and doing it well, instead of focusing on fights between the highest level decision makers of the federal government.

So what do when I say number one, what is administrative law? How many of you have taken administrative law? A few of you. How many of you have a vague sense of what administrative law is? Okay. I will give you a, I will give you a slightly less vague sense. Administrative law is the body of law that, generally speaking, governs the way the government executes the laws that Congress enacts, right?

So ordinarily when Congress enacts a law and says, we are gonna give Social Security benefits to people over the age of. Whatever the age is now Congress doesn’t do that in themselves, right? The president isn’t responsible for paying out beneficiaries. We have a Social security administration that is responsible for taking that law and administering it and making what Congress has promised a reality in the day-to-day lives of the affected Americans.

And so administrative law generally is that body of law that governs. How administrative agencies do what they do. Now, increasingly administrative law as a field number one takes a pretty court centered, top down focus on evaluating and structuring the work that administrative agencies do.

And from this perspective, it just emerges that administrative law tends to be about controlling the exercise of administrative power. And therefore it tends to be about the allocation of the control over that author over that power. And so administrative law courses and scholarship, and I’ll pick on myself here just to be clear tends to focus primarily on the power of Congress, the President and the Supreme Court, which is to say on structural constitutional questions.

For example, in my administrative law class, I only get a measly three credits. It’s very sad. But I generally speaking, have to teach my students sort of three buckets of legal doctrines, right? We spend about a third of the course on questions about the relationship between agencies and congress and the president and courts.

That is their position within the constitutional structure. We spend about a third of the course talking about the procedural requirements. For agency action and specifically for rulemaking and adjudication, which are the two types of action that are regulated by the Administrative Procedure Act, which is judicially enforced.

And then the last third of the class, which I will confess in some years has been bigger than a third, right? Is about judicial review. The timing, the availability, the scope of judicial review of agency action. And so we do what we do in all law school classes. We read a lot of cases. We read a lot of Supreme Court cases, and I often don’t feel like I have enough time to teach my students how agencies actually work on the day-to-day.

I. Because we’re too busy up here talking about the structural questions, which are all infused with separation of powers, even when we’re dealing with statutory questions. And sometimes in administrative law scholarship. And I appreciate part of this is the current moment, as I mentioned. But it’s always been this way.

The air, the sort of oxygen in the room is often taken up with constitutional questions, right? Debates over the non delegation doctrine. Debates over the scope of the article. Three judicial power debates over the extent to which Article two gives the president the right to control the way that agencies do their job, et cetera, et cetera.

Now in my remarks, I’m gonna focus mainly on identifying three phenomena or developments that I think have contributed to where the field is now. I’ll spend a little bit of time talking about what I think we should do instead and how we ought to reorient the field, but I’ll leave some of that to the questions and answers.

And so really I wanna focus on on three things. The first one that I that I think really influences the way we structure and think about and understand administrative law is how the legal profession defines and thinks about and teaches law generally, right? Which is to say that we tend to define law as the things that can be the basis of judicial decisions, right?

We use the case method. We’ve used the case method for over a century. Which means that in law school classrooms, what the law is what the courts say the law is, and more particularly what the courts will enforce and use sovereign power to enforce against people. Now that misses a lot, like a lot, right?

And in fact, in administrative law, as in again, most other classes. We use the case methods, so we read Supreme Court decisions, we read a smaller number of opinions from the courts of appeals. Every once in a while we throw a district court decision in there just for good measure, but I rarely have a day of class that isn’t structured around reading one or more judicial decisions.

Now, this is a really bad way, like a really bad way to understand what administrative agencies actually do on the ground. You would be hard pressed, I think, to find a worse way to understand administration than to read Supreme Court opinions. And I pulled some statistics for an article that I read, but generally speaking, the vast majority of what agencies do is not subject to judicial review.

And even if it in theory could be subject to judicial review, no one sues. Why? The vast majority of decisions, actually, the vast majority of the work of agencies just doesn’t directly affect the legal rights of private persons, number one. Number two, when it does directly affect the rights of private persons, usually it’s done through an informal method where the law is perfectly clear and actually everyone agrees on what the facts are, and the agency can typically come to a decision and make it final without any dispute.

Maybe not because the private party likes it, but because they know they don’t have any legs to stand on, right? Maybe it’s not consent, but it’s at least acquiescence, and so it’s a very small percentage of administrative decisions that actually generate a dispute at all. Those disputes typically are go to an agency hearing, but it’s a very small percentage.

A very small percentage of those hearings are at the conclusion of the proceedings, subject to judicial review, and of the cases that end up in district court or in the court of appeals. In situations where the appeal goes directly to the court of appeals, usually the decision from the court is the end of the matter.

The number of cases that get to the US Supreme Court is extraordinarily small, and actually administrative law makes up a big part of the Supreme Court’s docket. A couple years ago, it was like 12 cases out of 80. Like they don’t take very many cases. And so almost by definition, if you’re understanding administrative law through the cases that end up at the Supreme Court, you are understanding administrative law through the most difficult.

The most weird, the most politically charged cases in administrative law, and it’s just not a great way to do it if what you wanna understand is what agencies are actually doing in the mind run of cases. Now, the second thing that I think has affected the way administrative law is structured is how administration has been reformed over the past half century.

And this is usually discussed under the heading of the shift to rulemaking, right? So during the New Deal period, and up till about the 1950s, agencies primarily made policy through adjudication. That is through the decisions of individual cases. Now, if you’re making policy through adjudication, you’re doing it.

Incrementally in individualized decisions, policy will emerge, but it will only be really evident over a number of cases, and it takes some time and you don’t get advanced warning and you can only do so much in an individualized case. Now, in the sixties and seventies, we decided that’s not a great way to do policymaking.

We would prefer it if administrative agencies do policymaking through rulemaking. Now rulemaking still has legally binding effects. If you’re talking about legislative rulemaking, which I am, right? But instead of just binding one person, a named party, in your case, you bind a whole class of people at the same time, right?

And you do it through a process that’s more transparent, that’s maybe more democratically legitimate because it requires notice and comment. The agency has to publish a rule, take, comment, consider those comments, and then publish a final rule. And. Really, everyone likes rulemaking better because it’s more transparent.

You get in advance an understanding of what the agency’s intending to do. You get, again, that degree of public participation. Now it’s not the case. It’s often we talk about it as if it was a situation where agencies one day woke up and we’re like, you know what? Adjudications a bad way to do this. Let’s do it through rulemaking instead.

For the most part, the push to shift agencies to using rules for the development of policy came from courts. From scholars from Congress, embracing the idea that rulemaking would be a more transparent way for agencies to do things more efficiently. And by efficiently, I mean binding larger groups of people through single decisions instead of having to adjudicate individualized cases.

So Congress in the sixties and seventies created a host of new agencies with much broader jurisdiction. A lot of health and safety agencies were created during this time period, and they were created specifically with authority to act through the adoption of rules. Now, the consequence of this, if adjudication has the tendency to atomize and submerge policymaking decisions, rulemaking concentrates them and lifts them up, right?

It makes them more transparent. It also makes the decisions bigger with bigger consequences and bigger political stakes. It also had the effect of making it easier for the president to get a grip on agency policymaking. So if you go all the way back to, FDR really tried to get a grip on the policymaking that was given to all the agencies in the federal government, but there wasn’t really a good way to do it because the authority was given to the agencies.

He tried to use the centralized control over budgeting to get at it, but that’s an indirect way and it wasn’t very effective. I think it’s no coincidence that it’s only after the shift to rulemaking that you have the emergence of executive review of rulemaking. Right now we’ve got a process that requires transparency.

That means that the agency has to say in advance what it plans to do, and it’s a bigger decision. And in fact, what crystallized in the Clinton administration with executive 12, 8, 6, 6, but starting earlier than that. Is actually the president, the White House, using the notice and comment rulemaking process to get a grip into agency policymaking in a way that expanded presidential power.

And I think over decades has really altered the norms of administrative governance in a way that has led agencies to be maybe more compliant with presidential priorities. Which perhaps I might suggest is coming home to roost a bit now. Now one more thing. There’s another contribution to this that I didn’t appreciate until the last year when I started reading about the 1925 Judiciary Act.

Why you might ask was I reading about the 1925 Judiciary Act? This is a question I asked myself about a lot of things I end up reading about. But I was doing a project, the short version is I was doing a project on a PA judicial review provisions. And so I ended up reading about this and I had not appreciated.

How fundamentally we restructured the judiciary in the early part of the 20th century, and especially through the 1925 Judiciary Act. Now, it’s not the only piece that matters, but it’s a really critical one. Initially, the Supreme Court was the court of last resort. But in the late 18 hundreds, we created intermediate court of appeals, and then we ended up with a situation where the Supreme Court, by the 1920s, could not keep up with its docket.

It was like two, three years behind on cases. A lot of the cases it heard were parts of its mandatory jurisdiction. It had no decision about whether to take the cases. It just had to take what came, and there were only nine justices. They could only do so much, and so they were perpetually behind. And so the 1925 Judiciary Act, which by the way was essentially the brainchild of Chief Justice Taft, who, as you might know, is a former US president, right?

Really radically altered the role of the Supreme Court. And actually, if you’re an administrative lawyer reading about the 1925 Judiciary Act, you are struck by how thoroughly the entire thing is infused with what? With principles that we ordinarily associate with administrative governance. A shift to decision making by general rules as opposed to by individual decision making a preference for deciding important questions that are worthy of the justice’s time, by which we mean federal constitutional questions, just to be clear, right?

We gave the Supreme Court the authority to decide what cases it would hear, and it and we put them in the position in effect of being a Ministry of justice at the top of a hierarchically organized judiciary. Now the consequence of that today, and by the way, lots of scholars, several scholars.

This is not an unknown story, it was just unknown to me when I stumbled upon it. A number of scholars have pointed out that this really affects the way that the Supreme Court develops doctrine. You get longer opinions, you get more dissent, you get more reasoning. Cases are taken not as cases, but as vehicles to decide generalized principles of law and opinions that contain enough reasoning for the courts of appeals to be able to apply those principles to a wide variety of cases that come before them.

And in administrative law, I think this has had the consequence over time, and Peter Strauss wrote about this in the 1980s. I, this is not a novel idea. For me, although I think what he described in the eighties has only deepened now administrative law cases that are taken by the Supreme Court, again, they’re vehicles to decide meta questions, and it’s a whole lot easier to understand and to fight about meta questions than it is to fight about the details of administrative governance.

So I’ll give you an example for those of you who have had administrative law, I’m sure you read Kaiser versus Wilkee. Which is a case decided a few years ago by the Supreme Court about the deference that a court should give to an agency’s interpretation of its own regulation. So it’s one of those, it’s one of those judicial review cases except it comes out of the Department of Veteran Affairs.

And it involved a question about what the VA’s regulation meant when it said that you had to have documents. Relevant to a decision in order to give a back pay of benefits. Is that enough context for you? Probably not, but I’m not gonna give you more. Why? Because you’d fall asleep. Like most of us are not gonna die on the hill of how the u the VA interprets that regulation.

We’re just not, most of us are not gonna show up at the oral argument. I would show up at that oral argument, but I’m a freak of nature as already identified. Now. It’s not that it’s not an important issue, it is an important issue. To veterans. And it is critical that the United States keep its promises to people who have fought for our country.
So I don’t mean to suggest that it’s not important, but it is a lot less politically salient and it is a lot less worth fighting for. For a lot of people who aren’t veterans or who aren’t involved in the administration of veterans benefits, once that case becomes not about Kaiser’s claim for benefits, but rather a question of what courts generally speaking should do.

On review where it matters how an agency is interpreting its regulation. Now every agency is interested. Now the Department of Justice is critically interested. Now, a lot of people who have strong ideological views about the structure of administrative law are interested in a way that wasn’t before.

So we take something that is a relatively easy case and we make it really hard. And I think that’s a consequence of actually all the things I’ve described, right? I think, so what do we what should we do about this? My suggestion is that we should try to focus more on what agencies actually do, right?

We should focus on the day-to-day work of taking a statute and making it real in the real world. Now that’s not as sexy as the separation of powers, I will admit. My enrollments might go down if anyone listened to me. But it is critically important and it takes the temperature down as well. And I think a lot of the fights that we’re having now might be because no, not because, let me take a step back and acknowledge that I am just a administrative lawyer.

And a scholar and a teacher, and I have about a grain of sands worth of influence on the world around us, right? What’s happening now is political, social, economic forces beyond our control. But I do think that law plays a significant role in structuring the options that are available to our political.

Actors and that maybe this moment, which is I think gonna be rough for a little while, presents an opportunity to refocus, right? So to refocus on the things that we agree on, we tend to focus only on the things we disagree about, right? It used to be that you could make a name for yourself in administrative law by writing treatises.

That’s not as much true. Now we want you to write scholarship where you. Say something novel and often, flashy and as someone recently tenured, I can say, the clear signal I got is that is how you make a name for yourself. But a treatise is collecting the things we all agree on, the things that aren’t worth writing a novel article about.

And I think we could do more of that. And I think we could do more on not ignoring constitutional questions. We can’t and we shouldn’t, but deciding those constitutional questions and framing them in a way that’s attentive to the on the ground realities of administration, even if that means taking the temperature down a bit, even if that means maybe making administrative law a little less sexy I’m gonna stop there, but I look forward to your questions.

These feel or feel free to cue either at this mic or the other one. I’ll go turn it on and ask Professor Bremmer your questions.

Everyone agrees? Yes.

Hello. Thank you so much for speaking with us. I just had a question about, I guess thinking about administrative law. I. Separately from Constitutional and the context of the law of democracy. So there is like a interesting law review article by Kevin Stack that says that rather than thinking about election law as like a constitutional institutional thing, rather we should think about it as like rules that are made through internal administrative law.

So like things like directives, policy memorandums through like individuals, secretary of State offices. I’m wondering like at least has applied to a separate discipline, like election law. What do you think? You’re like framing of thinking about administrative law as on the ground rather than as a constitutional question.

What kind of benefits do you think that gets us to when we think about other issues like law of democracy? Yeah, so that’s a good, that’s a good question and I kind of view Kevin Stack as a fellow traveler. I would say in this regard, he and Jillian Metzker have. Written some work together as well on an internal administrative law, which I think is very much sympathetic to and in line with what I’m suggesting.

And in fact there are scholars who do that kind of work, and I think both of them are very effective at really getting into the weeds of how administrative agencies work and integrating that into the constitutional questions. And I think that’s actually the critical part. It’s not so much a matter of severing administrative law from constitutional law.

It’s more a matter of grounding it, I would say, in the work of administrative agencies. And I’ll just, I’ll give you an example. So when I was working at the administrative conference of the United States, which is. I’ve been described by the Washington Post as an obscure agency, which is always nice to see in print.

It’s an agency that studies administrative procedure and makes recommendations for improvement. And I was working in a shared office with someone who was doing a project, and she came back from the Consumer Product Safety Commission. Was like, did you know that Congress passed a statute that just requires the CPSC to adopt as regulations standards that are made by private standard setters?

And I was like, that sounds like a violation of the non delegation doctrine. Like it just automatically, and of course I read the statute. No, that’s not what it does. That’s not what it does. So if you just if you describe it in the abstract, you get all excited ’cause it’s ooh, big constitutional question.

And then when you look at the language of the statute, it’s no, this was drafted. To make sure that the final decision and the judgment has to be exercised by the agency. And it has a different set of purposes. And it’s not that it’s, there’s no problem with it necessarily. We, there’s lots of debates over whether you should use private standards.

Don’t get me started. That was another line of my research. But it is the case that actually Congress wrote the law. To fit with our constitutional principles and the, as soon as you read the statute, that the big interesting things we could fight about actually have been dealt with in the details already.

I do this to my students all the time. I make them read statutes. When we, it’s really mean. I give them like the, the. The Interstate Commerce Act. I’m like, here you go guys. Here’s some provisions from the 1906 Hepburn Act. Let’s see how it changed. But the questions about the constitutional scope of the, those agency’s authority actually become like the heat is taken down once you actually look at the architecture and how it was, how the statute is written, and how the authority is structured and the questions in the abstract are just much more difficult.

Hello. Hi. Thank you so much for coming to talk to us today. I’m curious if we could talk a little bit about what the difference is between, actually writing law versus interpreting it, and especially in the way that shows up in our life. I’m curious because it seems to me like way back from Marbury v Madison.

It’s unequivocally the role of the courts to determine what the law is to interpret the law. And the way that we interact with the law as like ordinary citizens is how it is interpreted. If we interact with the law is because we are, in court somehow. Yeah. Being judged. And that law is being interpreted by the judicial system.

But at the same time, it is the role of the, the congress, but also like administrations to write that law. So is it more impactful to have who is in charge of that law? Is it the people who write it or the people who interpret it? And then who’s responsibility should it be to ensure that the law is, applying as it was intended. Just a little question. This is a really hard problem and not just an administrative law. I’m gonna ground it in administrative law. And of course the whole fight over the deference that courts should give to agency interpretations of their statutes with, Chevron deference recently being rejected by the court in Loper Bright is all about where we should draw that line and how we should describe it and why.

And it seems to me that the things can get a little more difficult when you add in the fact that an awful lot of administrative statutes are written in a very detailed way and with a lot of terms of art and are really designed to regulate not the conduct of sort of ordinary people, but the conduct of people who are in industry and have a more of a working knowledge.

And the agency and those people probably have a better understanding of those terms than courts do. So in administrative law because you’re dealing with just an incre incredible amount of complexity, right? And individual statutes, but also across the board, you have to find a way to, to manage that.

And the way the court has settled on it now is and I think there’s some version of this has always been the law and always will be the law, is that you can interpret the meaning of the statute. Obviously Congress writes it and all of this is Congress’s will. Agencies only get to do what Congress authorizes them to do.

And the president’s duty is a duty to faithfully execute the law, and so we recognize that the will should be in congress. Congress exercises, its will by enacting laws that unless they revise them, we have to be able to interpret them. And in our system of separated powers, the first line, the sort of first stab at interpreting those laws necessarily as a matter of pure practicality, is in the agency, right?

Because they have to implement the law. And until there’s a dispute over what the agency has done and how it’s interpreted statute, it doesn’t get to the courts. Courts don’t reach out and that looks like an interesting statute. I will interpret it right. Like it, it only gets to the courts if an agency is acted first and there’s a dispute and it’s a dispute that is litigated and, and then we have to find a way to to allocate the decision making authority.

And I think the way that we’ve actually always settled on it, we describe it differently, but the way we’ve always just, I think, settled on it in judicial review of agency action is that the court has the responsibility to give effect to the clear. To the clear Congressional will what the text says should control.

Now, the hard thing is that statutes aren’t always clear, and what do we do in areas of a lack of clarity? What do we do in areas where a law has afforded. Expressly some degree of discretion in the agency, and the court’s responsibility is to give effect to that as well as to the clear statements that would have the effect of binding the agency.

So this is a long way of saying that in the abstract. This is a really hard question. I actually think it’s easier in an individualized case when you make it more concrete, right? A question of whether or not to allow a bubble concept. Bizarre though what I’m about to say may seem is I think actually easier than a question of in general, who should have the authority to interpret the law courts or agencies.

And I think we would be better off doing it more on a case by case basis and having the courts act more like courts. Thank you.

Hi. Thank you for this. This is really interesting. I have more of a structural question on your talk about looking at what the agency, what the agencies are actually doing. I. There are so many procedural hurdles from hiring, firing, procurement, et cetera, on legislation because of the concern about runaway policy to the extent that we’re him actually hindering its implementation, which is a Nick Bagley type of observation.

Yep. How do we balance the need for accountability of agencies with the need to actually implement law effectively? Yeah. And ironically, all the things you just mentioned, which are critically important. Are things we don’t cover in administrative law, right? I don’t talk about procurement, I don’t talk about employment practices.

We’re gonna talk about it a little bit more soon because there’s gonna be some cases. And since we do the case method, like Yeehaw, I wish we’d thought about it sooner, right? I think we should be thinking about those things, right? And we should be giving them attention and preferably paying attention to them before they become the locus of a dispute.

Everyone now is like panicking and freaking out and being like, oh, what are the rules that govern, because we don’t know, because we’re administrative lawyers and we’re hanging out in the non delegation doctrine and the Chevron doctrine and we’re not paying attention to procurement law.

So I think we need to pay more attention to that. And I love Nick Bagley’s work. I find that I agree with him like 80% of the time and 20% of the time I think he’s just so aggressively wrong, right? And clearly procedure. There are definitely instances where procedure has been used to stymie things that can’t be beaten at the level of substance, and I find that really objectionable, right?

Decide the substance and just and because in part because procedure matters. The way we ensure that agencies produce good decisions is by having good procedures. So I think it’s important. It’s as important to focus on ensuring we have good procedures as it is to resist efforts to use procedure to slow down things that are objectionable on substantive grounds to people who maybe don’t have the political capital to get it through.

And here again, different part of our moment, right? I feel like there’s a new openness to considering. These questions that has not existed before. The sort of abundance movement which I consider Nick Bagley to be in, in the legal space a part of, I think there’s a new opportunity to reconsider procedures and I think it’s as important that we get rid of things that don’t work as it is to ensure that the things that we keep are doing the work that they need to do.

And I’ll just add another one ’cause you didn’t make this complicated enough. There’s also the question of like technology, like just making things work on like a, not on a legal or a procedural basis, but, and this is not the business of lawyers, right? If you wanna run a computer program, do not ask me.

I don’t know. But it is clear and I think anyone who has worked in the federal government for any length of time knows that there are a lot of things that are, procedures, but also just like bureaucratic norms and also technological issues that keep you from doing things that ob, that actually everyone agrees should be done and it has it, it feels like a immovable object, right?

Which I think part of what Doge is doing is trying to just tear it down by force where efforts to reform it have been stymied and I. I don’t love the way it’s being done, but I understand the impulse and we have to find a way to make things work. And by the way, this is not just, I’m sorry, I’m like filibustering.

This is not just, this isn’t like a gover, this isn’t just a government problem, this is a bureaucracy problem, right? Any if you’ve ever worked in a big organization that’s not a government entity, you’ve encountered the same things. So I think this calls for for people who aren’t lawyers.

People who are experts in administration and in organization and management. And also I think it calls upon lawyers to be attentive to those things and to have some knowledge of them where they intersect with the legal aspects of administration. But right now, I don’t think we’re in any way preparing our students to do that in law school.

Yeah. I thank you. Thank you for coming to speak with us today. My question is just about some of the, how you see your argument fitting in with some of the discourse around trans sensitivity in administrative law. You gave a really interesting example about the va. I. And some of the like tech, technical components that we could narrow the decisions by focusing them on specific disputes.

And there are some like law school classes that kind of take that approach to sort of administration. You could take immigration law or you could take securities regulation or you could take courses in that vein. And so I’m just curious, like overall, like how you see your argument fitting in with trans sensitivity.

Do you think administrative law as a discipline should move? Towards a more focused and, siloed view of administration or do you think the, that having a trans substantive administrative law. Actually constitutionals it and makes the questions that the courts have to address, apply to all agencies.

Yeah. Just higher stakes and more, more politicized and tougher to deal with. Yeah. This is a really significant tension. In the in. So one of the articles that I’ve been inspired by in this talk is a very subtly titled article I published called Power Corrupts. Not usually that, like aggressive in my titles, but there we were.

And I talk, I actually talk about this there, and it hits really close to home because I am an administrative law person. And I remember when I was working at the administrative conference, my boss was an academic on leave working in government. And I, and I of course was asking him for him advice, like, how do I get a tenure track job?

And he was like what do you wanna do? And I was like I wanna do administrative law. He was like. What are you talking about? Nobody is an administrative law person. Everybody has a home base, right? Dick Pierce is an energy lawyer first and an administrative lawyer Second.

Kristen Hickman is a tax lawyer first and administrative lawyer second. At some point around the time I graduated from law school, which is was 20 years ago. Which is impressive. It’s a couple decades have gone real fast. It shifted and I think administrative law became more its own thing.

Now this isn’t totally new, right? The Administrative Procedure Act was enacted on the basis of the idea that we should have trans substantive rules that apply across agencies. And I am deeply committed to that principle, and my thesis is a serious challenge to it. Because I now am realizing that actually some of the things that make administrative law really hard are the things that make it trans substantive.

And part of what I’m calling for would require me to spend more time, I don’t know, being a telecom attorney I litigated, it was in a telecom practice. This is my home base agency. So maybe I should be focusing more there. And actually some of the pressures that are coming now from some of the scholars who are.

Are pushing against like universal injunctions for example, like that whole debate, if you really take seriously the idea that judicial power has to be case by case, right? And maybe that means that downstream administrative power ought to be case by case. Maybe the shift to rulemaking has some more profound constitutional problems.

Then we realized when we were doing it if you take that seriously, you have to move away from some of the trans sensitivity. You can’t be as trans substantive if you’re gonna really be fluent in the field, in, in the individual fields.

A practical problem I’ve been wondering about is what do we do when agencies don’t have a quorum? I’m thinking now, especially of the national labor Relations Board and I think maybe the Merit Systems Protection Board. I don’t know if they don’t have a quorum now, or whether it’s they’re just facing one, but presidents don’t have the authority to cancel out.

Regulatory agencies are set up by Congress and the president has to put up with them whether they, he likes it or not. But by not nominating people. To these boards, or if the Senate doesn’t confirm people to the boards, the Senate could do it too. And if the board requires a forum to operate I’m just, I’m wondering what happens.

I’m wondering what happens too, right? Thi this is one of those situations where administrative law, I think. Can only do so much or has some bad choices available to it. The fact is the nominations process has just broken down. And the administrative conference lost its first, so it was defunded in the nineties.

Long story. I won’t go there. But it got reup it, it got up and running again in 2010 and the chairman’s term is five years. So he was there for five years. He left around the same time I went. Into academia actually, and the conference didn’t have a chairman for six years. If there is low hanging fruit in the federal government in terms of appointing a chair, you would think it would be the administrative conference of the United States.

It has literally no regulatory authority. Its sole job. To make administrative process more efficient and it has a budget of $3 million. Like this should not be hard, right? Who cares? Like why will we even have a hearing is a good question. But there wasn’t even an appointment and when there was, there were actually more than one appointments that like didn’t go through.

I don’t think administrative law can solve that problem. I think that is a problem in the political branches. Now, I do think that maybe we need to find a way to encourage our presidents to embrace their obligations and not just their power. And I do think that the way that administrative law has been structured suggests that it is entirely about power and not about duty and obligation.

And so to some extent what I am urging, and not just here but in other pieces as well, is that we should focus on. The part of administration that is about duty, that is not about getting to do what you want, that is not about discretion, right? We became, I think so obsessed with the very important problem of controlling discretion that we forgot that actually the vast majority of administration isn’t discretionary.

It’s just ministerial duty. And we have not, we don’t have a, I think a political culture that seems to embrace that reality. I don’t have solutions for the senate now for administrative law. Then you end up though with a really difficult problem. ’cause if you can’t control the thing that actually needs to be fixed, how do you address it?

Do you bite the bullet and you say too bad, like political branches just need to get their act together. Or do you solve it for them by interpreting the statute? And, but we’ve had some discussions on the administrative law Professor Listserv, which has been very active, as you might imagine about this exact problem.

Some statutes are silent on whether an agency needs a quorum. There are some agencies that have regulations that define their quorum rules, but there doesn’t seem to be a statutory provision that addresses it. You could just say. Look, Congress said you need to have five people. And if you don’t have a quorum, then you can’t act and let the political branches clean up their own mess or you can soften the rule and reinterpret the statute to allow the agency to continue doing its work.

I actually am a fan of the first, not happily, but I think we should enforce the law as written and make the political branches take responsibility for their own failures.
That is how I sound when I reprimand my children. Incidentally, sorry, that was a little bit of mom voice at the end there. So I’m curious in the courts context, how much this is a Supreme Court problem as opposed to a lower court problem. I’m also interested in. Potential procedural solutions.

Whether you think that anything that happened in 1925 that went wrong could be reversed in a way that would be useful. Yeah. Thanks. Yeah. So it is a problem I think both of the Supreme Court and the lower courts together. I think Justice, see, chief Justice Taft might have overestimated the the possibility of.

Of really controlling lower court decisions by. By generalized decisions from the Supreme Court. And actually the Chevron doctrine is a great example of this, right? So Tom Merrill has written a terrific book and a bunch of articles about the origins of the Chevron doctrine, and it seems pretty clear.

I find it very, I find his case very persuasive that justice Stevens did not have like a revolution in mind, right? Like he thought he was, what he was doing with that one step, two step stuff was just describing the law as it was. And the case was decided without a full slate of justices.

And it, it was not a controversial case. It was a sleeper. But he came up with this very elegant two step which just sings to the lawyerly heart. It’s so easy to grasp and it feels like you can just apply it. And like students always loved it. ’cause it’s just like it, Chevron was the easy day, right?

Because they get the Chevron doctrine like immediately. But the hard part is that it’s a standard and it doesn’t really tell you what to do, and it’s really manipulable. And what the courts did with it was very different than what I think the Supreme Court anticipated should be done. And so I always distinguish between Chevron, the case and Chevron, the doctrine that the lower courts, and especially the DC circuit.

Developed under Chevron, which you know if you’re a busy circuit judge and you got a complex case before you, that’s an agency case, you could do the two step. Is it clear to me that the agency is wrong? Nope. I defer. Like it makes things a lot simpler. And in fact, when I was in practice, and this is 2006.

Ish, 2010, our advice, and I was litigating mainly in the DC circuit, was, look, if you’ve got a question of statutory interpretation and you wanna sue the agency, always the FCC, in my case, right then, you need to have a really good argument at step one, because if you get to step two, you will lose. I felt really good when Chris Walker and Kent Barnett came out with their study of Chevron in the circuit courts and actually showed that the agency win rate at step two in the circuit courts was 93%.

I was like, my advice was good. Yes. And I think a lot of the, I mean I used to spend four days or so on Chevron, maybe more because there’s how clear is clear and you know how reasonable is reasonable and to what does this apply? Is it just formal adjudication? Can it also be informal rulemaking?

Does it have to have force of law? What is force of law? Which is always a fun question to ask three Ls when it’s you’re almost done with law school. Do you know what force of law is? And they’re like, no idea. And so we, I think the reason why the doctrine got so convoluted was precisely because the court had to repeatedly try to control what was happening in the lower courts.

And the truth is that you just can’t do it through generalized decisions in a way that’s really effective. So I have heard people say, I’ve talked to judges and they say that in 20 years on the bench, they have never deferred, then you’ve got like Justice Kavanaugh, who when he was on the DC circuit said I’m a foot nine kind of guy.

Like he was interpreting for all it was worth and rarely deferring. And so there was just a lot of wiggle room. And let’s be real that most cases are not gonna go to the Supreme Court. So you can’t catch ’em all. And in fact you’re gonna catch very few of them if you’re the Supreme Court.

So I think part of the problem is that the court is trying to herd cats. And I just don’t see how you get around that problem without deciding more cases. Now, whether you could unwind the decisions that were made in the 1925 Judiciary Act, probably, but painfully, and I’m not a scholar of the Supreme Court, I will defer to others who have more expertise in this area, but it does seem to me that we would be better off if the court took more cases and gave shorter opinions that were more about the cases and a little less designed to give generalized guidance.

How you reach that goal, whether it’s through legislative changes or, frankly, a lot of what happens now is a matter of the way the justices do their jobs, right? I don’t have good answers to those questions, but I do think it’s worth identifying it as a problematic phenomenon, which I just didn’t appreciate until the last year.

Any further questions, the microphones are available, but if not, let please join me in thanking Emily Bremer for that wonderful lecture, which so thought provoking. So thank you very much. Thank you.