Category Archives: Administrative Law

Idaho court refuses to look the other way as agencies try to avoid democratic accountability

Unelected bureaucrats hold tremendous power over us, thanks to decades of Congress delegating evermore authority subject to the vaguest of constraints. However, Congress has imposed some checks on federal bureaucrats to ensure a modicum of democratic accountability over the administrative state. One of those checks is the Congressional Review Act, which requires agencies to submit every rule they wish to impose on us to our elected representatives in Congress for review.

The CRA experienced a renaissance in 2017, with Congress disapproving sixteen burdensome and controversial rules. However, as PLF has long pointed out, many more rules must still undergo this scrutiny, thanks to decades of agencies simply ignoring the CRA’s requirements. There are literally thousands of rules being enforced today that have never received even this minimal democratic scrutiny.

Thanks to a decision last night from the District Court for the District of Idaho, those rules may finally receive the scrutiny they deserve. Representing ranchers unlawfully subject to controversial rules regarding the greater sage grouse, PLF sued the Departments of the Interior and Agriculture, demanding that they finally send these rules to Congress as required. Indicative of how adamantly opposed agencies are to democratic oversight, the government sought to have the case dismissed, arguing that agency violations of the CRA—no matter how clear cut—cannot be reviewed by any court.

In this case, the Court recognized that argument for what it is—a claim that agencies are free to behave lawlessly—and squarely rejected it. “[W]ithout review,” the Court explained, “an agency would frankly have no reason to comply with the CRA.” The Court continued: “[I]f the agency never submits its plans—as required—the Court is troubled with Defendants’ position that essentially any rule or law can go into effect without oversight or approval and there is no legal remedy available[.]” Continue reading

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