Category Archives: Administrative Law

Supreme Court Deals Unanimous, Welcome Blow to Administrative State in Frog Case

Unanimity is elusive in today’s America but the Supreme Court achieved it last week. Although the dusky gopher frog is endangered, so are property rights and accountable governance. Both would have been further jeopardized if the frog’s partisans in the U.S. Fish and Wildlife Service (FWS) had gotten away with designating 1,544 privately owned Louisiana acres as a “critical habitat” for the three-inch amphibian, which currently lives only in Mississippi and could not live in the Louisiana acres as they are now. The eight justices (the case was argued before Brett Kavanaugh joined the court) rejected both the government’s justification for its designation, and the government’s argument that its action should have received judicial deference, not judicial review.
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Congress must do its own job—make laws

The Constitution gives Congress the power to make laws, but not to delegate that power to the Executive Branch. Doing so allows unelected, unaccountable bureaucrats to make rules in violation of the Non-Delegation doctrine. In Gundy, the U.S. Supreme Court will review whether Congress violated the Non-Delegation doctrine by empowering the Attorney General to unilaterally make law. PLF’s supporting brief urges the Court to revive the Non-Delegation doctrine, so Congress can no longer dodge accountability by sloughing off its lawmaking responsibilities. Continue reading

Supreme Court Justices Question Administrative Law

Opinions from Justices Kagan and Kennedy speak to the need to restore constitutional constraints.

Is America’s administrative state unconstitutional? That’s a question usually associated with conservative legal scholars. But on Thursday Justices Elena Kagan and Anthony Kennedy each produced an opinion questioning longstanding features of the modern administrative state. Both opinions should encourage further reform and modernization of administrative law.

Justice Kagan’s majority opinion in Lucia v. SEC involved “administrative law judges.” ALJs are a significant feature of modern administrative law, but they are not actually judges. They don’t serve on courts, enjoy judicial independence or have life tenure. Instead, they are employed by agencies to adjudicate disputes in a quasijudicial process authorized in the Administrative Procedure Act of 1946.

The Securities and Exchange Commission’s ALJs wield significant powers, exercising discretion and issuing decisions that become final and binding unless the SEC’s commissioners act to overturn them. Because they have such power, they are what the Constitution calls “officers,” and thus can be appointed only through the process that the Constitution mandates—by the president with Senate consent; or, if they are (in the Constitution’s words) “inferior” officers, then by the president alone or by department heads (or perhaps by the courts). The SEC’s ALJs, however, were simply appointed by the SEC’s staff, as if they were ordinary employees.

Writing for a six-justice majority, Justice Kagan found that agency officers wielding the ALJs’ powers cannot be appointed by midlevel bureaucrats, shielded from the transparency and accountability that the Constitution’s process ensures.

In Pereira v. Sessions, Justice Kennedy joined an 8-1 ruling that rejected an agency’s interpretation of an immigration statute. In a lone concurrence, he voiced doubts about “ Chevron deference,” the 1984 doctrine of judicial deference to agencies’ statutory interpretations.

“The type of reflexive deference exhibited in some of these cases is troubling,” he wrote. “Given the concerns raised by some Members of this Court”—namely, Chief Justice John Roberts and Justices Clarence Thomas and Neil Gorsuch —“it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision.”

Justices Kagan’s and Kennedy’s opinions may surprise observers who assume that the administrative state—for whose “deconstruction” former White House aide Steve Bannon once called—is a right-wing bogeyman. But both opinions fit naturally with their authors’ work.

Justice Kagan is a scholar of “presidential administration,” keenly aware of why the Constitution ensured that the appointment of constitutional “officers” could not be delegated down into the bureaucracy itself. Justice Kennedy has repeatedly expressed concerns about committing too much power and discretion to agencies, and has joined other justices’ opinions raising explicit questions about judicial deference.

The Kagan and Kennedy opinions, then, are useful reminders that one need not be an archconservative to see flaws in modern administrative law. Both Chevron deference and the ALJ structure reflect old attempts to strike balances. Chevron was the Court’s compromise between the courts’ power to interpret laws independently, and the executive branch’s role in making policy choices accountably. ALJs are Congress’s compromise between adjudicative independence and efficiency.

Whatever the merits of those compromises at the time they were struck, changes in our administrative state since 1984 and 1946 should cause us all to ask whether those decades-old compromises are appropriate and sustainable—and constitutional.

Wall Street Journal Opinion by Adam White dated June 24 2018

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Seventeen State Request Reconsideration of Chevron Deference

In practice, courts have used Chevron to abdicate responsibility to enforce the law as written by Congress, opting instead to give unaccountable federal agencies free rein. All supporters of the Constitution’s separation of powers should be concerned about the impact of this massive transfer of power from Congress and the courts to bureaucrats. Continue reading

PLF asks Supreme Court to rule on Constitutionality of Impact Fees

“Until we decide this issue, property owners and local governments are left uncertain about what legal standard governs legislative ordinances and whether cities can legislatively impose exactions that would not pass muster if done administratively. These factors present compelling reasons for resolving this conflict at the earliest practicable opportunity.” Continue reading

City apologizes after violating First Amendment rights

What started as artistic expression in Mount Dora, Florida, escalated into a bureaucratic nightmare for Nancy Nemhauser and Lubomir Jastrzebski. When the couple painted a van Gogh-style “The Starry Night” mural on a wall outside their house, the city declared the art “graffiti” because it didn’t match the color of the house. But when Nancy and Lubomir responded by painting a similar mural on the house, the city branded both as illegal “signs,” and fined them hundreds of dollars per day with orders to paint over the mural. On behalf of Nancy and Lubomir, PLF is challenged the city. We argued that banning such artistic murals is an abusive interpretation of the city’s sign ordinance, and violates the First and Fourteenth Amendments. In July 2018, Nancy and Lubomir declared victory when the city council voted to settle the lawsuit and allow the mural to remain. Continue reading

Can an administrative agency strip you of your right to put on evidence?

How to destroy constitutional rights:
Step 1: Force property owners to try their cases before an agency that CAN’T DECIDE constitutional issues.
Step 2: If the property owners appeal to a court that CAN decide them, just block the owners from submitting ANY evidence about them.

In Washington state, property owners who want to challenge the constitutionality of a new land-use or critical area restriction must first try their case to the Growth Management Hearings Board—an administrative agency that lacks the authority to decide constitutional issues. Although this requirement was meant to streamline the ordinary types of legal challenges arising from land-use regulation, it is a frustrating and often futile endeavor for anyone asserting constitutional claims. A recent decision from a Washington trial court took that process from the realm of the frustrating to the unconscionable.

In 2014, the City of Bainbridge Island recently adopted one of the most aggressive shoreline protection ordinances in the State. Among other onerous provisions, the City enacted laws forbidding homeowners from gardening without permit approval and generally declaring “all human activity” within 200 feet of a shoreline illegal without government approval. Back in 2014, several shoreline residents challenged the ordinance as violating a number of constitutional provisions in the case Preserve Responsible Shoreline Management v. City of Bainbridge Island.

The case went to the Growth Board first, which unsurprisingly upheld the ordinance against PRSM’s statutory challenges. The case then went to the superior court to hear PRSM’s constitutional claims. That’s where things went terribly sideways. Several of PRSM’s constitutional claims require evidence of the ordinance’s impact on fundamental rights. That type of evidence can be very simple. For example, PRSM offered a brief statement from a local resident that gardening and landscape design is expressive conduct—a statement that could be accomplished in a 3-page declaration.

The City, however, argued that because the case was technically “on appeal” from an administrative agency, PRSM had no right to put on any evidence of its constitutional claims. PRSM called the City out on its nonsense, pointing out that every citizen has a right to put on evidence necessary to prove the elements of a constitutional claim when that claim is properly raised for the first time before the court that has exclusive and original jurisdiction. Without addressing this argument (or the law requiring evidence), the trial court refused to allow PRSM to submit any evidence.

PLF attorneys sought immediate appellate review of the trial court’s decision because trying its constitutional case without the ability to offer the evidence required would be futile. PLF argued that fundamental notions of due process demand that litigants be provided a fair opportunity to put on evidence. The fact that land-use challenges must go through an administrative agency before they can be filed in the superior court does not strip individuals of that fundamental right. Earlier this week, the Court of Appeals granted direct review of this important question. We expect the issue to be briefed and argued by the end of the year.

Pacific Legal foundation Article by Brian Hodges