Administrative Law
Agency Control and Internally Binding Norms
Modern applications of the binding-norm test suggest that agencies cannot bind even low-level officials to internal guidance. This Note, however, finds that internal binding norms are common tools of bureaucratic supervision. In response, it proposes a new approach to judicial review of guidance that separates its internal and external effects.
Disparate Limbo: How Administrative Law Erased Antidiscrimination
Does administrative law have a racial blind spot? Ceballos, Engstrom, and Ho examine “disparate limbo”: how claims that agencies caused racial disparities have come to evade review under both antidiscrimination and administrative law, and how ignoring race may have helped build modern administrative law’s empire.
Judging the Fed
Judicial review of the Federal Reserve is uncommon. But this may soon change: a Court skeptical of administrative governance is poised to collide with an increasingly interventionist Fed. This Note argues that any path forward must take seriously the Fed’s role in our economic system while acknowledging its democratic deficiencies.
Reasoned Explanation and Political Accountability in the Roberts Court
The Supreme Court invalidated two major executive-branch initiatives in the past two years, pointing in each case to concerns about an evasion of political accountability. This Feature surfaces the “accountability-forcing” brand of arbitrariness review at work in these cases, unpacks its significance, and mounts a qualified defense of its merits.
A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s
The Supreme Court is poised to consider whether the Constitution’s original meaning is compatible with numerous and longstanding congressional laws delegating power to the bureaucracy to enact regulations affecting private rights within the United States. New evidence presented in this Article indicates Congress in the 1790s found such delegations constitutional.
Nondelegation at the Founding
Several current Supreme Court Justices have signaled a renewed interest in resurrecting the nondelegation doctrine, but numerous scholars have portrayed the doctrine as ahistorical and unoriginalist. This Feature systematically reviews the evidence and concludes there is much more historical support for a revived nondelegation doctrine than recent scholars have argued.
Executive Defiance and the Deportation State
Can federal administrative agencies defy the courts? As this Feature demonstrates, executive defiance of judicial authority is already afoot in the immigration system, and in ways that implicate multiple dimensions of the deportation state as well as the evolving relationship between the executive and judicial branches in immigration law.
The Problem with Public Charge
This Note seeks to identify the causes of “public charge” confusion. Mapping the exclusion’s history reveals how Congress and the courts have left the administrative state a near-impossible task: reconciling public charge with evolving commitments to public welfare. Drawing on archived Clinton-era negotiations, I offer a path forward.
Technocratic Pragmatism, Bureaucratic Expertise, and the Federal Reserve
Congress has given the Federal Reserve broad statutory mandates over the U.S. economy. This Feature articulates a framework, “technocratic pragmatism,” to evaluate how the Fed should structure experiments at the boundaries of its authority to combat complex problems (e.g., global climate change) consistent with demands of legality and accountability.
From Progressivism to Paralysis
The complexity of the regulatory state undermines public goals, and leads to broad citizen alienation. The root cause is the progressive aspiration to organize government as a kind of machine producing uniform public choices. A functioning democracy requires a simpler framework allowing officials to take responsibility and be accountable.
Rules, Commands, and Principles in the Administrative State
Pound and Schmitt both assumed that the administrative state would increasingly abandon general rules in favor of ad hoc administrative commands. Dworkin, however, predicted that the increasing complexity of the administrative state would induce reliance on general legal principles to maintain legality. Dworkin’s prediction has largely been borne out.
The Attorney General’s Settlement Authority and the Separation of Powers
Can the federal government make policy when it settles litigation? Surprisingly, yes. This Note offers a comprehensive account of the Department of Justice’s authority to enter into policymaking settlements, and a new separation-of-powers defense of that authority. Ultimately, policymaking settlements can fit comfortably within existing administrative-law norms.
Who Pays? An Analysis of Fine Collection in New York City
This Essay analyzes New York City data on the collection of fines and concludes that slightly more than half of fines imposed are collected in full. The Essay explores barriers to collection and recommends reforms that attempt to directly target underlying harms, rather than increase resources for fine collection broadly.
Deadly Delay: The FDA’s Role in America’s COVID-Testing Debacle
Recently, the FDA asserted authority to regulate a type of COVID-19 diagnostics known as laboratory-developed tests, which long have been a front line of response to emerging disease. FDA did not, and should not, have authority to regulate these tests. Its intervention added minimal value while contributing to deadly delays.
Rulemaking § 101
This Note chronicles the Patent Office’s use of guidance to reduce the judicially created uncertainty that surrounds patentable subject matter. It argues that these guidance documents closely resemble legislative rulemaking and thus push the boundaries of the Office’s current authority.
Plessy Preserved: Agencies and the Effective Constitution
Federal officials enforced a “separate but equal” framework for public housing long after Brown invalidated that principle. This administrative regime wrote segregation into U.S. cities, operating as the effective Constitution for decades. This Article asks why a liberal, reformist agency chose that path—and what it teaches about administrative constitutionalism.
The Rise and Fall of Administrative Closure in Immigration Courts
For over three decades, immigration judges used administrative closure as a case-management tool to encourage efficiency and fairness. After then-Attorney General Sessions ended this practice, the U.S. immigration-court system has faced severe and unjustifiable consequences. This Essay argues for a legislative solution to revive administrative closure.
Constraint Through Independence
Skepticism of the federal bureaucracy has inspired growing calls to cabin the independence of certain agency actors, including administrative law judges (ALJs). Through a holistic assessment of NLRB case law, including a novel empirical study, this Note argues that eliminating ALJ independence would counterproductively undermine judicial review of agency adjudications.
The Statutory Separation of Powers
Separation of powers operates as an underappreciated structural principle in subconstitutional domains. Using the relationship between federal energy agencies as its primary case study, this Article argues that Congress creates statutory schemes of separation, checks, and balances in its delegations to administrative agencies operating within discrete policy domains.
The Claims of Official Reason: Administrative Guidance on Social Inclusion
Under the Trump Administration, the legal validity of Obama-era administrative guidance on social inclusion has been the subject of ongoing contest. This Article draws on the philosophy of law to argue that these policies were issued in a procedurally lawful manner and that they have induced legally relevant reliance interests.