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Administrative Law Without Congress

Administrative Law—both in its New Deal and its modern, post-Chevron version—rests on legislative supremacy. In other words, it assumes that there’s a halfway functional Congress. What if there isn’t? What happens when Congress fails to update ancient statutes and, when legislating at all, enacts convoluted statutes (such as Dodd-Frank or the ACA) that no one can make sense of? What if everyone starts taking it for granted that Congress is hopeless?

Ashley Parrish and I explore the question in a forthcoming article in the GMU Law Review. (Mr. Parrish, a dear friend and frequent co-conspirator, is a partner at King & Spalding.) What happens when Congress goes AWOL, we explain, is that agencies start playing games at the outer limits of the law, and often beyond those limits. They unilaterally re-write their organic statutes. They play procedural shell games. And they start waiving regulatory requirements for folks they like, while hitting disfavored industries with a ton of bricks.

What happens next, we further explain, is that AdLaw doctrines we all thought we knew start to bend. Those doctrines aren’t all that constraining to begin with. They weaken further when the ordinary and obvious judicial response to agency overreach—“you need congressional authority for that”—seems absurdish.

The full-length article shows that rewrites, shell games, and waivers happen a lot—in environmental law, energy law, financial regulation, health care, and pharmaceutical regulation. Depressing reading. But if we want to be serious about legal doctrines for the administrative state, we should start with a realistic appraisal.

Reader Discussion

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on October 28, 2014 at 15:54:59 pm

Administrate law? Seems like they have been doing that ever since the New Deal, if not before, and the before considers the incorporation of the Federal government in 1871 as a possible beginning, baring their fear that the folks might wake up. Just consider how the folks concerned about wild life are re-introducing wild life back into the neighborhoods they once inhabited. A friend in the middle West told me he came across the game warden with open cages, obviously having released some forms of wild life. Another friend told of killing a Timber Rattler near a Sound, here in North Carolina, and how the fellow he was with said, "Quick, get rid of it. If the Game Warden catches us, it will cost somewhere around 5-10,000." Seems that they are reintroducing Timber Rattlers to that area. We know they have been doing it with Mountain Lions out west, sometimes with disastrous results (Them thar cats like to kill for pleasure it seems and not just for food),some early morning joggers discovered to their demise. Back in the Summer of '59 I had to walk a country dirt road in central Florida, with fear, only to find that I didn't need to fear as the Gatos then were back in the everglades. Fast Forward to today, however, and I would not try it all, cause the Gators have made a comeback, thinks to the friendly folks of the Wildlife outfit or so it seems. A relative lost a buddy, they think,to one in the river near Jacksonville, Fla., and we know of others who have paid the supreme price so that the Alligators might re-inhabit their native areas...even up to North Carolina. I consider that murder. Alligators, Mountain Lions, Grizzly Bears, as well as some other furry friends of the wild do not mix with human life. And are they serious about getting rid of the populations on the Great Plains in order to restore the native grazing land to the Buffalo from the Canadian Border to the Rio Grande?

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dr. james willingham
on October 28, 2014 at 17:37:44 pm

Sounds like a great article, Greve! Give your fans a link when you've got one.

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nobody.really
on October 28, 2014 at 21:24:48 pm

Yep! I tried it - did not work!

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gabe
on October 29, 2014 at 07:06:00 am

I will check back later for the working link...

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aez
on October 29, 2014 at 12:06:06 pm

the link is up and working. will take you to SSRN site for extended paper.

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gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.