Annual Review of Administrative Law - The George Washington Law Review

In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled Chevron as inconsistent with the Administrative Procedure Act (“APA”), which requires courts to decide “all relevant questions of law” and therefore prohibits them from deferring to agency interpretations because the relevant statutory language is ambiguous. A different approach now governs judicial review of the countless routine, often specialized questions of statutory interpretation that agencies answer in the normal course of implementing their statutes—the “ordinary” questions.

Chenery II Revisited

Daniel T. Deacon 92 Geo. Wash. L. Rev. 1050 Ever since the Supreme Court’s 1947 decision in SEC v. Chenery Corporation, known as Chenery II,...

What the New Major Questions Doctrine Is Not

Anita S. Krishnakumar 92 Geo. Wash. L. Rev. 1117 The major questions doctrine has undergone a sea change in prominence within the span of two...

Judicial Review of Agency Noncompliance with Presidential Administrative Orders and OMB Circular A-4

Eitan Sirkovich 92 Geo. Wash. L. Rev. 1163 President Biden’s Executive Order 14,094, Modernizing Regulatory Review, continues the line of presidential directives dating back to...

The Mathematical Question: Defining “Relatively Easy” Political Questions

Nathaniel Schwamm 92 Geo. Wash. L. Rev. 1182 Justiciability doctrines are intertwined with constitutional commands and prudential concerns. They weave together text and history; they...

Nondelegation Blues

Philip Hamburger 91 Geo. Wash. L. Rev. 1083 The nondelegation doctrine is in crisis. For approximately a century, it has been the Supreme Court’s answer...

Beyond APA Section 553: Hayek’s Two Problems and Rulemaking Innovations

Yoon-Ho Alex Lee 91 Geo. Wash. L. Rev. 1215 Section 553 of the Administrative Procedure Act of 1946 is hailed as “one of the greatest...

Pharmaceutical Patents and Adversarial Examination

Dmitry Karshtedt 91 Geo. Wash. L. Rev. 1259 Proposals to improve the work quality of the U.S. Patent and Trademark Office (“PTO” or “USPTO”) continue...

Set Up to Fail: National Labor Relations Board

Mher Mkrtchian 91 Geo. Wash. L. Rev. 1330 The National Labor Relations Board (“NLRB”) can no longer be described as an independent agency. The structural...

Drawing a Line: How Energy Law Can Provide a Practical Boundary for the Rapidly Expanding Major Questions Doctrine

Kyle Pasucci 91 Geo. Wash. L. Rev. 1360 Administrative agencies must respond to innovation in their field of expertise to keep their regulatory approach efficient...

Testing Textualism’s “Ordinary Meaning”

Tara Leigh Grove 90 Geo. Wash. L. Rev. 1053 The statutory interpretation literature has taken an empirical turn. One recent line of research surveys the...

The New Separation of Powers Formalism and Administrative Adjudication

Robert L. Glicksman & Richard E. Levy 90 Geo. Wash. L. Rev. 1088 The Supreme Court has entered a new era of separation of powers...

Statute-Focused Presidential Administration

Bijal Shah 90 Geo. Wash. L. Rev. 1165 When the President directs agency action, this is known as “presidential administration.” Without fail, presidential administration furthers...

Supervising Guantanamo Tribunals: Appointments Clause Challenges After Arthrex

Laura Stanley 90 Geo. Wash. L. Rev. 1265 Recent Supreme Court jurisprudence suggests courts may begin to play a greater role in scrutinizing congressional statutes...

(Con)textual Interpretation: Applying Civil Rights to Healthcare in Section 1557 of the Affordable Care Act

Heather Skrabak 90 Geo. Wash. L. Rev. 1291 When Congress passed the Affordable Care Act in 2010, Section 1557 of the legislation promised powerful nondiscrimination...

A New CFIUS: Refining the Committee’s Multimember Structure with For-Cause Protections

Vania Wang 90 Geo. Wash. L. Rev. 1316 Foreign investment in the United States has always been an important element of the nation’s economy, but...

Carrot & Stick: Reorganizing and Empowering the Election Assistance Commission

Jessie Ojeda 90 Geo. Wash. L. Rev. 1354 The U.S. Election Assistance Commission (“EAC” or “Commission”) is failing in its duties to shepherd and assist...

Nondelegation as Constitutional Symbolism

Kristin E. Hickman 89 Geo. Wash. L. Rev. 1079 The divided Supreme Court in Gundy v. United States and subsequent events have given rise to...

How Chevron Deference Fits into Article III

Kent Barnett 89 Geo. Wash. L. Rev. 1143 U.S. Supreme Court Justices Clarence Thomas and Neil Gorsuch, along with Professor Philip Hamburger, assert that Chevron...

Remand and Dialogue in Administrative Law

Christopher J. Walker & James R. Saywell 89 Geo. Wash. L. Rev. 1198 A bedrock principle of administrative law is that when a court finds...

Permissible Derogation: The Common Law and Agency Interpretations Under Chevron

Jalen LaRubbio 89 Geo. Wash. L. Rev. 1261 The common law has undergirded American society since the founding. In recent decades, however, the law surrounding...

Delegating and Regulating the President’s Section 232 and IEEPA Trade Powers

Jacob Reiskin 89 Geo. Wash. L. Rev. 1280 Congress has provided the President extraordinary authority to enact emergency trade remedies. Throughout the Trump Administration, American...

Promises Unfulfilled: Did the Trump Administration Substantially Change the Administrative State?

Amy Orlov 89 Geo. Wash. L. Rev. 1306 In 2019, Professors Robert L. Glicksman and Emily Hammond of The George Washington University Law School examined...

An Article I Body to Issue Declaratory Advisory Opinions on Competitor Challenges to Tax Regulations

Lily Ting Hsu 89 Geo. Wash. L. Rev. 1333 Caselaw demonstrates that Article III courts are unwilling to entertain claims brought by third parties that...

Administrative Law’s Shadow

Jacob E. Gersen 88 Geo. Wash. L. Rev. 1071 This Essay explores the shadow of administrative law. A good deal of government authority that is...

The “Ambiguity” Fallacy

Ryan D. Doerfler 88 Geo. Wash. L. Rev. 1110 This Essay considers a popular, deceptively simple argument against the lawfulness of Chevron. As it explains,...

The Power to Vacate a Rule

Mila Sohoni 88 Geo. Wash. L. Rev. 1121 A vigorous debate has emerged concerning the legality and desirability of the “universal” or “nationwide” injunction. A...

Time Is Not the Enemy

John M. Hindley 88 Geo. Wash. L. Rev. 1193 The conservative members of the Supreme Court desire to radically reshape the status quo of administrative...

Interfering with the Watchman: OLC Disruption of the Statutory Whistleblower Process

Christine L. Coogle 88 Geo. Wash. L. Rev. 1221 In September 2019, the Department of Justice Office of Legal Counsel (“OLC”) issued an opinion concluding...

Supporting the Agency “Designed to Do Nothing”: Creating a Regulatory Safety Net for the FEC

Arnab Datta 88 Geo. Wash. L. Rev. 1259 To say the Federal Election Commission (“FEC”) is in crisis would be a remarkable understatement. The agency...

Tenure of Office and the Treasury: The Constitution and Control over National Financial Policy, 1787 to 1897

Aditya Bamzai 87 Geo. Wash. L. Rev. 1299 The disputed scope of the President’s authority to remove subordinates in the executive branch, and to direct them in the performance of their functions, is one of the central issues of federal constitutional law. On the one hand, some argue that Article...

Early Customs Laws and Delegation

Jennifer Mascott 87 Geo. Wash. L. Rev. 1388 This past Term the Supreme Court reexamined the nondelegation doctrine, with several justices concluding that in the proper case, the Court should consider significantly strengthening the doctrine in its contemporary form. Adherents to the doctrine question whether Congress has developed a practice...

Codifying the Agency Class Action

James Hannaway 87 Geo. Wash. L. Rev. 1451 Through devices like class actions and other consolidation procedures, agencies have developed several tools to manage large numbers of cases involving similar claims. While this effort to create more effective agency class actions is in its nascent stages, some form of codification...

What Is an ICO? Defining a Security on the Blockchain

Seth Holoweiko 87 Geo. Wash. L. Rev. 1472 2017 brought the rise of the initial coin offering (“ICO”), a novel fundraising concept that enables organizations to raise funds from anyone with an internet connection and a cryptocurrency wallet by selling tokens that will have some future purpose related to the...

Fine-Tuning: Why Extending the Public Performance Right in Sound Recordings Would Require Changes for the Copyright Royalty Board

Samuel E. Meredith 87 Geo. Wash. L. Rev. 1518 Imagine yourself getting into your car and tuning in to a local radio station so you can listen to Cardi B’s latest track while you drive to work. Now imagine yourself doing the same thing, only this time you choose to...

The American Nondelegation Doctrine

Cass R. Sunstein 86 Geo. Wash. L. Rev. 1181 An American nondelegation doctrine is flourishing. Contrary to the standard account, it does not forbid Congress from granting broad discretion to executive agencies. Instead it is far narrower and more targeted. It says, very simply, that executive agencies cannot make certain kinds of decisions unless Congress has...

Optimal Ossification

Aaron L. Nielson 86 Geo. Wash. L. Rev. 1209 One of the dirtiest words in administrative law is “ossification”—the term used for the notion that procedural requirements force agencies to spend a long time on rulemakings. Ossification, however, is misunderstood. Even leaving aside the other benefits of procedures, delay itself can be...

Topic Modeling the President: Conventional and Computational Methods

J.B. Ruhl, John Nay & Jonathan Gilligan 86 Geo. Wash. L. Rev. 1243 Law is generally embodied in text, and lawyers have for centuries classified large bodies of legal text into distinct topics—that is, they “topic model” the law. But large bodies of legal documents present challenges for conventional topic modeling methods. The task of...

Defying Debarment: Judicial Review of Agency Suspension and Debarment Actions

Samantha Block 86 Geo. Wash. L. Rev. 1316 Judicial review of agencies’ suspension and debarment decisions is currently in flux. Recently, courts are more closely scrutinizing such decisions, potentially altering the way these tools are used. Both Congress and the courts need to consider creating a clear and consistent standard for agency review of suspension and...

Lying in Wait: How a Court Should Handle the First Pretextual For-Cause Removal

Richard Rothman & Katelin Shugart-Schmidt 86 Geo. Wash. L. Rev. 1348 The legal limits of for-cause removal protections for executive officials have barely been defined, even as the current presidential administration considers removing protected officials. Open questions include whether and how courts will choose to define “cause,” as well as whether courts will inquire into the...

Use of the Congressional Review Act at the Start of the Trump Administration: A Study of Two Vetoes

Stephen Santulli 86 Geo. Wash. L. Rev. 1373 Once regarded as a legislative dead letter, the Congressional Review Act (“CRA”) gained new vitality in 2017 as President Trump and Republicans in Congress used the Act to veto more than a dozen regulations issued late in the Obama Administration. The reemergence of the CRA renewed debate...

Chartering Fintech: The OCC’s Newest Nonbank Proposal

Elizabeth J. Upton 86 Geo. Wash. L. Rev. 1392 The Office of the Comptroller of the Currency is responsible for ensuring federally chartered banks’ safety and soundness, compliance with federal banking laws, and compliance with federal laws regarding fair access to financial services and fair treatment of customers. The states have historically overseen and regulated nonbank...

“Good Cause” Is Cause for Concern

James Yates 86 Geo. Wash. L. Rev. 1438 The Administrative Procedure Act (“APA”) generally requires that all federal administrative rules undergo public “notice and comment.” The “good cause” exception allows an agency to bypass this requirement where it would be “impracticable, unnecessary, or contrary to the public interest.” In recent years, good cause has been increasingly...

Two Zones of Prophylaxis: The Scope of the Fourteenth Amendment Enforcement Power

Calvin Massey · November 2007 76 GEO. WASH. L. REV. 1 (2007) Although City of Boerne v. Floresestablished that Congress has nly a remedial power to enforce the Fourteenth Amendment and may not define for itself the substance of the Amendment’s guarantees, it left the boundaries of that power ill-defined....

Statutory Interpretation in the Context of Federal Jurisdiction

Debra Lyn Bassett · November 2007 76 GEO. WASH. L. REV. 52 (2007) Article III of the United States Constitution and by the statutory architecture set out in the Judicial Code. By longstanding and deeply entrenched interpretive practice, federal courts have erected a singular approach to statutory interpretation involving the...

The Constitutionality of an Expedited Rescission Act: The New Line Item Veto or a New Constitutional Method of Achieving Deficit Reduction

Seema Mittal · November 2007 76 GEO. WASH. L. REV. 141 (2007) In 1998, the Supreme Court considered a challenge to the Line Item Veto Act of 1996, which gave the President unilateral authority to rescind certain spending provisions already enacted into law, and found it unconstitutional. Nonetheless, in March...

Foreign Antisuit Injunctions: Taking a Lesson from the Act of State Doctrine

Kathryn E. Vertigan · November 2007 76 GEO. WASH. L. REV. 172 (2007) First, this Note examines the general problem of parallel litigation and the particular problem of parallel litigation involving international rather than interstate lawsuits. Whereas parallel litigation between two U.S. states implicates federalism and the Full Faith and...

Reasoned Administration: The European Union, the United States, and the Project of Democratic Governance

Jerry L. Mashaw · November 2007 76 GEO. WASH. L. REV. 99 (2007) The right to be heard and to have decisions on one’s interests made fairly and impartially are embodied in the Due Process Clauses of the U.S. Constitution and in a wide range of statutes, including the Administrative...

James F. Humphreys Complex Litigation Lecture: The Adversary System and Modern Class Action Practice

Roger H. Transgrud · February 2008 76 GEO. WASH. L. REV. 181 (2008) My topic today is modern class action practice and how Rule 23 of the Federal Rules of Civil Procedure has come to be interpreted in our federal courts in ways that I believe mask the proper criteria...

The President’s Secrets

Gia B. Lee · February 2008 76 GEO. WASH. L. REV. 197 (2008) When congressional committees sought information relating to the U.S. attorney firings and Hurricane Katrina, when the 9/11 Commission called for the National Security Advisor to testify, when Senators requested memoranda authored by judicial nominees while working as...

The Silicon Bullet: Will the Internet Kill the NLRA?

Jeffrey M. Hirsch · February 2008 76 GEO. WASH. L. REV. 262 (2008) The National Labor Relations Act’s (“Act”) increasing obsolescence in the modern workplace is well documented. Nowhere is this problem more apparent than where unions and employees use the Internet and other electronic communications to further employees’ collective...

Too Clever By Half: The Unconstitutionality of Partial Representation of the District of Columbia in Congress

Jonathan Turley · February 2008 76 GEO. WASH. L. REV. 305 (2008) When the Democratic majority took control of the 110th Congress, one of the first matters on the agenda was one of its the oldest controversies: the representational status of the District of Columbia in Congress. In a bipartisan...

Is This Your Bedroom?: Reconsidering Third-Party Consent Searches Under Modern Living Arrangements

Russell M. Gold · February 2008 76 GEO. WASH. L. REV. 375 (2008) Americans live in countless different types of housing arrangements. Whether for convenience, financial necessity, companionship, or other reasons, nearly ten percent of American households include at least one nonrelative. This variety of living arrangements has increased significantly...

Overseeing Agency Enforcement: A Foreword to the Annual Review of Administrative Law

Rachel E. Barkow · 84 Geo. Wash. L. Rev. 1129 · A big part of what agencies do—indeed, the core of their executive power—is law enforcement. Whether it is a statute or an agency regulation, agencies make sure that individuals and entities comply with the law. In the case of some agencies, such...

Chevron Bias

Philip Hamburger · 84 Geo. Wash. L. Rev. 1187 · This Article takes a fresh approach to Chevron deference. Chevron requires judges to defer to agency interpretations of statutes and justifies this on a theory of statutory authorization for agencies. This Article, however, points to a pair of constitutional questions about the...

Preambles as Guidance

Kevin M. Stack · 84 Geo. Wash. L. Rev. 1252 · Debates over administrative agencies’ reliance on guidance documents have largely neglected the most authoritative source of guidance about the meaning of agency regulations: their preambles. This Article examines and defends the guidance function of preambles. Preambles were designed not only to...

The Future of Deference

Richard J. Pierce, Jr. · 84 Geo. Wash. L. Rev. 1293 · In this Essay, Professor Richard Pierce describes the history of the deference doctrines the Supreme Court has announced and applied to agency interpretations of ambiguous statutes and rules over the last seventy years. He predicts that the Court will continue...

Revisiting the Public Rights Doctrine: Justice Thomas’s Application of Originalism to Administrative Law

Laura Ferguson · 84 Geo. Wash. L. Rev. 1315 · Administrative agencies today adjudicate vastly more disputes than do Article III courts. The constitutional underpinnings of the administrative agency’s adjudicative power remain somewhat murky, however, as does today’s conception of which cases administrative agencies can appropriately adjudicate. The Supreme Court has said...

Using Interpretive Methodology to Get Out from Seminole Rock and a Hard Place

Matthew Mezger · 84 Geo. Wash. L. Rev. 1335 · Though not directly at issue in Perez v. Mortgage Bankers Association, several of the Supreme Court Justices felt compelled to question the legal validity of Auer deference. This rule granting agencies deference when interpreting their ambiguous regulations has been a longstanding precedent...

In Defense of Churches: Can the IRS Limit Tax Abuse by “Church” Impostors?

Lidiya Mishchenko · 84 Geo. Wash. L. Rev. 1361 · A large gap in our Tax Code allows certain religious organizations to amass extraordinary riches while preying on the faithful. Their conduct is causing damage to the church as an institution and is inconsistent with the purpose of tax exemptions—to provide a...

Disclosure, Eventually: A Proposal to Limit the Indefinite Exemption of Federal Agency Memoranda from Release Under the Freedom of Information Act

Kyle Singhal · 84 Geo. Wash. L. Rev. 1388 · On June 30, 2016, President Barack Obama signed into law the FOIA Improvement Act of 2016, which made some headway towards increasing agency compliance and efficiency with Freedom of Information Act (“FOIA”) requests. The Act requires, among other things, the creation of...

The Constitutionality of SEC Administrative Law Judges: Exploring Hill v. SEC