Administrative Law Review
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Open Access journal
ISSN (Print) 0001-8368
Published by WCL [11 journals]
- Partial Valuation in Cost-Benefit Analysis
PubDate: Mon, 15 Oct 2012 15:10:40 PDT
- Dismantling a Dual-Headed System of Governance: How a Regulatory Overlap
Undercuts the Security of Student Health Information in Public Schools
PubDate: Mon, 15 Oct 2012 15:10:39 PDT
- Comments on H.R. 3010, The Regulatory Accountability Act of 2011
PubDate: Mon, 15 Oct 2012 15:10:38 PDT
- Piercing Glomar: Using the Freedom of Information Act and the Official
Acknowledgment Doctrine to Keep Government Secrecy in Check
PubDate: Mon, 15 Oct 2012 15:10:38 PDT
- Administrative Law Through the Lens of Immigration Law
Abstract: Immigration law does lag behind in the advancement of public law, but not in all respects. While immigration law is idiosyncratic in many ways, this Article finds immigration law in the administrative law mainstream when it comes to its troubles with nonlegislative rules (sometimes called guidance documents). There are concerns throughout administrative law that agencies use such rules to bind regulated parties practically, even if not legally, without the procedural protections of notice and comment.This Article analyzes immigration troubles with nonlegislative rules and makes three main contributions. First, it casts new light on the negative effects of guidance documents by viewing administrative law through the lens of immigration law. In immigration law, the cons of guidance documents play out in the context of some of life’s most fundamental questions: where and with whom to live and to work. Second, by showing how administrative law manifests in immigration law, this Article concludes that immigration law’s troubles cannot be divorced from the mainstream administrative law debate over nonlegislative rules. Third, this Article also evaluates a procedure new to immigration law: the draft memorandum for comment. Through the draft memorandum for comment procedure, the public may comment on draft guidance documents, but is not afforded the full protections of notice-and-comment rulemaking. While the new procedure is a pragmatic and positive step for immigration law, this Article highlights that nonlegislative rules are not the only administrative tool available and argues for greater priority for notice-and-comment rulemaking in immigration law.
PubDate: Mon, 15 Oct 2012 15:10:37 PDT
- Mr. Justice Marshall Rothstein, Supreme Court of Canada, Address to the
American Bar Association, Section of Administrative Law and Regulatory
Authors: Justice Marshall Rothstein
Abstract: So, today, I am going to speak to you about justiciability—what government decisions can be subject to review by the courts. In particular, the role of Canadian courts in reviewing the power exercised by the Executive Branch of government. And I am very confident in the accuracy of my remarks today because I have cribbed shamelessly from Professor [David] Mullan’s work.The principle of the Judiciary having the power to review the actions of the Executive or Legislative Branches of government is well established in American, as well as Canadian, law. Where I’ll start is with Marbury v. Madison. As you all know better than I do, there, in 1803, your Supreme Court established the basis for the exercise of judicial review in the United States. Chief Justice Marshall held that your courts could oversee and review the actions of other branches of the government and in doing so declare statutes unconstitutional.Chief Justice Marshall also dealt with the question of justiciability. He wrote that “the question [of] whether the legality of an act of the head of a department be examinable in a court of justice or not, must always depend on the nature of that act.” He indicated that for some acts, which are political in nature and do not concern individual rights, that the decision of the Executive is conclusive and, in his words “can never be examinable by the Courts.” While for other acts, again in his words, “where a specific duty is assigned by law, and individual rights depend upon the performance of that duty . . . the individual who considers himself injured, has a right to resort to the laws of his country for a remedy.”There are interesting parallels between the American approach and the Canadian approach to justiciability, which I hope will become clear as I further discuss the Canadian attitude towards the subject.
PubDate: Tue, 06 Mar 2012 11:51:09 PST
- A Regulatory Quick Fix for Carcieri v. Salazar: How the Department of
Interior Can Invoke an Alternative Source of Existing Statutory Authority
to Overcome an Adverse Judgment Under the Chevron Doctrine
Authors: Howard L. Highland
Abstract: At the Solicitor’s Indian Law Practitioner’s Conference on March 3, 2011, Secretary of the Interior Ken Salazar reiterated his desire for a “legislative fix” for the Supreme Court opinion in Carcieri v. Salazar. In Carcieri, the Court interpreted the Indian Reorganization Act of 1934 (IRA) to effectuate a perverse distinction between Indian tribes under federal jurisdiction in June 1934 and Indian tribes whose relationship with the federal government was not established until after June 1934. Applying step one of the doctrine articulated in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., which inquires “whether Congress has directly spoken to the precise question at issue,” the majority opinion of Justice Thomas declared that “the term ‘now under Federal jurisdiction’ in [the IRA] unambiguously refers to those tribes that were under the federal jurisdiction of the United States when the IRA was enacted in 1934.” As a result, § 5 of the IRA, codified at 25 U.S.C. § 465, only authorizes the Secretary of the Interior to “provid[e] land for Indians” whose tribe fits within the IRA’s definition of an “Indian,” codified at 25 U.S.C. § 479: “The term ‘Indian’ as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.” A cloud now hangs over any land-into-trust transactions that the Secretary has made for Indian tribes which were not federally recognized until after 1934, and which are now unable to prove that their “post-1934 recognition [was granted] on grounds that implied a 1934 relationship between the tribe and Federal Government that could be described as jurisdictional.”The cries for a legislative fix began to pour out as soon as the Carcieri decision was delivered. A slew of proposed reform bills have made their way into the public discussion of federal land-into-trust policies. And yet, because the Department of the Interior’s land-into-trust acquisitions for Indian tribes are “not without passionate opposition,” Congress is wading slowly into this potentially explosive controversy. While Congress hesitates to fix Carcieri, the Secretary continues to contemplate whether to promulgate a new regulation to mitigate the decision’s harshness. Unfortunately, “a proposed regulation being considered by the Obama administration . . . is generally disfavored by tribal leadership, owing largely to the perception that a regulatory fix will delay, or even halt, progress towards a legislative remedy, which is regarded as a more permanent measure.”Unlike older proposals, which presume the need for new legislation or regulations to fix Carcieri, this Recent Development argues that existing statutes and regulations already authorize the Secretary to overcome the effects of Carcieri. Even though the IRA no longer authorizes the Secretary to take land into trust for Indian tribes not under federal jurisdiction in June 1934, the Secretary’s fee-into-trust regulations under 25 C.F.R. Part 151 rest on several other pillars of statutory authority. 25 U.S.C. §§ 2 and 9 are the strongest alternative sources of statutory authority under which the Secretary may claim delegated authority for fee-into-trust acquisitions on behalf of Indian tribes not under federal jurisdiction in June 1934. The Supreme Court has already recognized that 25 U.S.C. §§ 2 and 9 vest the Secretary with the power toformulat[e] policy and [to make] rules to fill any gap left, implicitly or explicitly, by Congress. In the area of Indian affairs, the Executive has long been empowered to promulgate rules and policies, and the power has been given explicitly to the Secretary and his delegates at the [Bureau of Indian Affairs (BIA)].Under the Chevron doctrine, 25 U.S.C. §§ 2 and 9 constitute an explicit delegation of authority to the Secretary to promulgate “legislative regulations [which] are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Such legislative regulations are thus entitled to the maximum amount of Chevron deference.25 U.S.C. §§ 2 and 9 also form the statutory basis for 25 C.F.R. Part 83, which codifies the federal administrative process for the acknowledgment of Indian tribes previously lacking federal recognition. Because 25 C.F.R. § 83.12(a) entitles acknowledged tribes “the privileges and immunities available to other federally recognized historic tribes,” and renders them “eligible for the services and benefits from the Federal government that are available to other federally recognized tribes,” federal acknowledgment under 25 C.F.R. Part 83 ought to include the benefits available to tribes under 25 C.F.R. Part 151. Accordingly, this Recent Development urges that the ruling in Carcieri does not prohibit the Secretary from asserting that he has always held statutory authority under 25 U.S.C. §§ 2 and 9 to transfer land into trust for Indian tribes acknowledged under 25 C.F.R. Part 83. Although not every tribe federally recognized after 1934 was given status under 25 C.F.R. Part 83, the regulatory quick fix proposed in this paper would minimize the devastating consequences of Carcieri while a legislative fix stalls in Congress.
PubDate: Tue, 06 Mar 2012 11:51:08 PST
- Legal Issues in E-Rulemaking
Authors: Bridget C.E. Dooling
Abstract: Since the enactment of the Administrative Procedure Act (APA) in 1946, the technological landscape has changed dramatically while the basic framework for notice-and-comment rulemaking has largely gone unchanged. Federal regulators, looking to embrace the benefits of electronic rulemaking, face considerable ambiguity about how established, procedural legal requirements apply to the web. For example, does the APA permit agencies to require comments to be submitted online' Are agencies required to screen the content of public comments before they are placed on Regulations.gov' Are electronic dockets a legally sufficient means of preserving the rulemaking record' Many of these issues and others have been swirling around electronic rulemaking (e-Rulemaking) since its inception, and exist whether rulemaking is accomplished entirely on paper or using more electronic means. This Article focuses on the legal issues that present themselves entirely, or more prominently, when agencies engage in e-Rulemaking.Following a short background section on e-Rulemaking, Part I explains why updating the APA to address e-Rulemaking is unnecessary. Part II explores whether and how agencies should screen public comments before sharing them online and suggests a fundamental change to the way comments are posted on the biggest online rulemaking website, Regulations.gov. Part III analyzes the legal issues associated with using an electronic docket to compile the rulemaking record, finding that well-designed electronic dockets pose no significant legal risks but that the courts could probably do more to embrace electronic filing. Part IV shows that the most basic of federal requirements, the recordkeeping requirements of the Federal Records Act, apply to e-Rulemaking and suggests ways to ensure compliance. The Article concludes with a recap of the Article’s recommendations.
PubDate: Tue, 06 Mar 2012 11:51:07 PST
- Setting Labor Policy Prospectively: Rulemaking, Adjudicating, and What the
Authors: Emily Baver
Abstract: For years, scholars have criticized the National Labor Relations Board’s (NLRB’s or Board’s) reliance on adjudication rather than rulemaking. The use of adjudication rather than rulemaking is problematic for the NLRB because of continued “policy oscillation”—frequent changes in agency policy between presidential appointments—in Board adjudications, which “sows disrespect for the agency.” Additionally, the NLRB’s sole use of adjudication precludes public participation, encourages fact‑specific policymaking, and fosters the problem of agency nonacquiescence. Scholars argue that by rulemaking, the NLRB could ameliorate the appearance of political bias, articulate clear precedents, and encourage public participation in policymaking.Despite the promise of clearer precedents and a more politically neutral appearance, the NLRB has largely refrained from notice‑and‑comment rulemaking. The NLRB claims that rulemaking procedures are too rigid for union policymaking, which must be quick to respond to specific fact patterns. This raises ossification of rulemaking issues, including problems posed by the Regulatory Flexibility Act (RFA) and the Congressional Review Acts (CRA), and the threat of judicial review. The threat of congressional intervention also influences the NLRB's decision to refrain from rulemaking.There has been renewed scholarship criticizing the NLRB’s avoidance of rulemaking and suggesting that the current Board is in a good position to begin rulemaking. Heeding scholars’ pleas, on December 22, 2010, the NLRB issued its first notice of proposed rulemaking since its only recent successful rule in 1989 defining bargaining units in healthcare facilities.In light of this renewed discussion about the benefits of rulemaking in the inherently political unionization context, this Comment will examine the recent and controversial representation election procedure rulemaking by the National Mediation Board (NMB)—the federal agency charged with overseeing labor relations in the railway and airline industries—as a point of comparison for the NLRB. Both agencies are bipartisan, independent, and facing the challenge of regulating in a highly political industry. In November 2009, the NMB proposed a change in the way it counts union election ballots. For seventy‑five years, the NMB’s election procedure required that a majority of all eligible voters in the voting class cast valid ballots in favor of representation to certify the union. Under the new rule, the NMB counts a majority of the valid ballots actually cast to determine if the class has elected a representative, a process which conforms to NLRB voting procedures. The NMB engaged in notice‑and‑comment rulemaking under the Administrative Procedure Act (APA), invited written submissions, and even held a public hearing on the issue before adopting the final rule on May 11, 2010.Controversy surrounded the rule change—the agency received almost 25,000 comments during its sixty‑day comment period and heard thirty‑one witnesses at the open hearing. Those who opposed the rule argued that the NMB rushed through the notice‑and‑comment process just before Delta, whose employees were traditionally anti-union, merged with Northwest, a traditionally pro‑union organization. Additionally, NMB Chairman Elizabeth Dougherty dissented from both the proposed and final rules, complaining that as the minority Republican member of the NMB she was given insufficient time to review the rule before its publication. Ultimately, the NMB successfully defended itself in the U.S. District Court for the District of Columbia against arguments that it lacked statutory support to alter election procedures, that the majority prejudged the issues involved, and that it lacked factual support to justify the policy change. Although the Air Transport Association (ATA) has appealed the decision, the rule has also withstood a Senate joint resolution vote to return to the old election procedures.Given the similarities between the NMB and the NLRB, the NMB’s successful rulemaking attempt demonstrates that the NLRB has the wherewithal to engage in notice‑and‑comment rulemaking, and it should look to the NMB’s procedures as a guideline for conducting rulemaking in the future. This Comment analyzes the predictive and instructive value of the NMB’s representation election procedure rulemaking for the NLRB.
PubDate: Tue, 06 Mar 2012 11:51:05 PST
- Fixing the Flaws in the Federal Vaccine Injury Compensation Program
Authors: Peter H. Meyers
Abstract: Hannah Bruesewitz was born on October 20, 1991. Her pediatrician administered doses of the [diphtheria, pertussis, and tetanus (DTP)] vaccine according to the Center for Disease Control’s recommended childhood immunization schedule. Within 24 hours of her April 1992 vaccination, Hannah started to experience seizures. She suffered over 100 seizures during the next month, and her doctors eventually diagnosed her with “residual seizure disorder” and “developmental delay.” Hannah, now a teenager, is still diagnosed with both conditions.In 1995, Hannah Bruesewitz’s parents embarked on an unsuccessful fifteen-year odyssey through the courts. Claiming that Hannah suffered vaccine-related injuries for which she was entitled to compensation, her parents litigated her case in every available forum, culminating in their recent loss in the U.S. Supreme Court. Hannah’s parents first sought compensation, as they were required to do, under the National Childhood Vaccine Injury Act (Vaccine Act), a pioneering no-fault federal tort reform law that took effect two decades ago. The statute, preempting state product liability laws, mandates that all claims for compensation for injuries caused by the vaccines routinely given in the United States must first be brought and litigated in the U.S. Court of Federal Claims, with the Secretary of Health and Human Services (HHS) as the respondent. After exhausting this remedy, petitioners have the option of filing a civil action in state or federal court, on grounds not foreclosed by the Vaccine Act, against the manufacturer of the vaccine or the healthcare provider who administered it.After the Court of Federal Claims rejected Hannah’s parents’ petition for compensation, her parents filed a civil tort suit against the vaccine’s manufacturer. The complaint was dismissed in large part by the District Court, which held that the Vaccine Act’s preemption clause forbids a claim against a vaccine manufacturer based upon a design defect, which was Hannah’s parents’ most promising remaining ground for relief. On February 22, 2011, the U.S. Supreme Court affirmed the dismissal.Hannah’s case highlights a number of problems with the National Vaccine Injury Compensation Program (Vaccine Program or Vaccine Compensation Program) today. The program represented a legislative compromise involving the major interest groups working in the vaccine area, including vaccine manufacturers, physicians’ groups, healthcare providers, federal health agencies, and parent groups advocating on behalf of injured children. Now that the Vaccine Program has been operating for more than twenty years, we can reach several broad conclusions about its successes and failures in satisfying the objectives of these groups and the objectives of the legislation. First, it appears that the Program has been largely successful in providing excellent liability protection for the pharmaceutical industry that makes vaccines, as well as for the doctors and other healthcare providers who administer them. These groups have been extremely concerned about possible tort liability for alleged vaccine-related injuries. While the Vaccine Act has not entirely eliminated all potential tort liability for manufacturers and healthcare providers, it has significantly minimized such liability, particularly after Bruesewitz v. Wyeth. The interests of the federal health agencies involved in the vaccine area, including HHS, the Centers for Disease Control (CDC), the Food and Drug Administration (FDA), and several other agencies, have also been largely satisfied by ensuring a relatively constant supply of vaccines to the public and ensuring that a high number of Americans receive inoculations. However, the objectives of parents’ groups and other advocates for children and adults who have suffered serious injuries after receiving vaccines have not been satisfied. For persons who may have been injured by vaccinations, the need for expeditious, generous, and predictable compensation remains unmet. Moreover, the process of adjudicating vaccine cases today is seriously flawed and in need of repair.In this Article, I will examine the process of litigating vaccine injury claims in the Vaccine Compensation Program. The adjudicative process has changed over time, such that the program has become much different today than it was when the law was first enacted. The Vaccine Compensation Program is also very different from the program that the Supreme Court described in Bruesewitz. In the Bruesewitz opinion, the Supreme Court characterized the underlying proceedings before the special masters as involving “informal adjudication” which moves quickly to final resolution within 240 days of filing “except for two limited exceptions.” The Court added: “Fast, informal adjudication is made possible by the Act’s Vaccine Injury Table . . . .”These descriptions of the Vaccine Program would have been largely accurate when the Act was initially passed, but they are substantially inaccurate in describing how the program actually operates today. The adjudications today are typically not informal at all, virtually no cases are concluded within the 240-day deadline, and the Vaccine Injury Table, which was originally a central feature of the Vaccine Act and a key innovative provision of the Act, has been significantly changed and narrowed over the years so that today it plays only a limited role in Vaccine Act cases.The Vaccine Injury Table lists the specific injuries that the court recognizes as presumptively caused by a vaccine and the specified time limit for the occurrence of the onset of each listed injury. When the Vaccine Program began, the overwhelming majority of cases that were litigated in the program involved the relatively simple question of whether the Table r...
PubDate: Tue, 06 Mar 2012 11:51:04 PST
- A Cost-Benefit Interpretation of the "Substantially Similar" Hurdle in the
Congressional Review Act: Can OSHA Ever Utter the E-Word (Ergonomics)
Authors: Adam M. Finkel et al.
Abstract: Congress has always had the power to overturn a specific regulation promulgated by an executive branch agency and, as the author of the underlying statutes under which the agencies regulate, has also always been able to amend those statutes so as to thwart entire lines of regulatory activity before they begin. But in 1996, Congress carved out for itself a shortcut path to regulatory oversight with the passage of the Congressional Review Act (CRA), and can now veto a regulation by passing a joint resolution rather than by passing a law. There is no question that Congress can now kill a regulation with relative ease, although it has only exercised that ability once in the fifteen years since the passage of the CRA. It remains ambiguous, however, whether Congress can use this new mechanism to, in effect, do to a regulation what the Russian nobles reputedly did to Rasputin—poison it, shoot it, stab it, and throw its weighted body into a river—that is, to veto not only the instant rule it objects to, but forever bar an agency from regulating in that area. From the point of view of the agency, the question is, “What kind of phoenix, if any, is allowed to rise from the ashes of a dead regulation'” This subject has, in our view, been surrounded by mystery and misinterpretations, and is the area we hope to clarify via this Article.A coherent and correct interpretation of the key clause in the CRA, which bars an agency from issuing a new rule that is “substantially the same” as one vetoed under the CRA, matters most generally as a verdict on the precise demarcation of the relative power of Congress and the Executive. It matters broadly for the administrative state, as all agencies puzzle out what danger they court by issuing a rule that Congress might veto (can they and their affected constituents be worse off for having awakened the sleeping giant than had they issued no rule at all'). And it matters most specifically for the U.S. Occupational Safety and Health Administration (OSHA), whose new Assistant Secretary is almost certainly concerned whether any attempt by the agency to regulate musculoskeletal disorders (“ergonomic” hazards) in any fashion would run afoul of the “substantially the same” prohibition in the CRA.The prohibition is a crucial component of the CRA, as without it the CRA is merely a reassertion of authority Congress always had, albeit with a streamlined process. But whereas prior to the CRA Congress would have had to pass a law invalidating a rule and specifically state exactly what the agency could not do to reissue it, Congress can now kill certain future rules semiautomatically and perhaps render them unenforceable in court. This judicial component is vital to an understanding of the “substantially the same” prohibition as a legal question, in addition to a political one: whereas Congress can choose whether to void a subsequent rule that is substantially similar to an earlier vetoed rule (either for violation of the “substantially the same” prohibition or on a new substantive basis), if a court rules that a reissued rule is in fact “substantially the same” it would be obligated to treat the new rule as void ab initio even if Congress had failed to enact a new veto.In this Article, we offer the most reasonable interpretation of the three murky words “substantially the same” in the CRA. Because neither Congress nor any reviewing court has yet been faced with the need to consider a reissued regulation for substantial similarity to a vetoed one, this is “uncharted legal territory.” The range of plausible interpretations runs the gamut from the least daunting to the most ominous (from the perspective of the agencies). To foreshadow the extreme cases briefly, it is conceivable that even a verbatim identical rule might not be “substantially similar” if scientific understanding of the hazard or the technology to control it had changed radically over time. At the other extreme, it is also conceivable that any subsequent attempt to regulate in any way whatsoever in the same broad topical area would be barred. We will show, however, that considering the legislative history of the CRA, the subsequent expressions of congressional intent issued during the one legislative veto of an agency rule to date, and the bedrock principles of good government in the administrative state, an interpretation of “substantially similar” much closer to the former than the latter end of this spectrum is most reasonable and correct. We conclude that the CRA permits an agency to reissue a rule that is very similar in content to a vetoed rule, so long as it produces a rule with a significantly more favorable balance of costs and benefits than the vetoed rule.We will assert that our interpretation of “substantially similar” is not only legally appropriate, but arises naturally when one grounds the interpretation in the broader context that motivated the passage of the CRA and that has come to dominate both legislative and executive branch oversight of the regulatory agencies: the insistence that regulations should generate benefits in excess of their costs. We assert that even if the hazards addressed match exactly those covered in the vetoed rule, if a reissued rule has a substantially different cost–benefit equation than the vetoed rule, then it cannot be regarded as “substantially similar” in the sense in which those words were (and also should have been) intended.
PubDate: Tue, 06 Mar 2012 11:51:03 PST
- Calibrating Chevron for Preemption
Authors: Gregory M. Dickinson
Abstract: For years now, courts and commentators have struggled to reconcile the presumption against preemption—the interpretive canon that presumes against federal incursion into areas of traditional state sovereignty—with the Court’s Chevron doctrine, which instructs courts to defer to reasonable agency interpretations of ambiguous federal statutes. Where Congress’s preemptive intent is ambiguous, should courts defer to agency interpretations under Chevron, or do preemption’s federalism implications demand a less deferential approach' Despite numerous opportunities, the Supreme Court has failed to clearly define the level of deference due to preemptive agency interpretations. In some cases the Court appears quite deferential and in others almost entirely nondeferential.Academic treatment of the Court’s jurisprudence has been rightly critical. The Court’s unpredictable approach sows uncertainty among regulated parties, the lower courts, and the agencies themselves. As alternatives to the Court’s current case-by-case approach, commentators have advocated a variety of more rule-like regimes: universal nondeference, universal Chevron deference, and, most commonly, universal Skidmore deference. Advocates of across-the-board nondeference point to the lack of political and procedural safeguards protecting states from agency-initiated preemption. Those advocating across-the-board Chevron deference, on the other hand, point to agencies’ technical expertise on preemption questions and the availability of the Mead doctrine as a screen to protect the values of federalism where agencies act other than with the force of law. Finally, a third set of commentators attempts to reconcile these competing approaches by adopting a middling standard of Skidmore deference based on the thoroughness and persuasiveness of an agency’s judgment in a particular case.Thus far, none of these approaches have tempted the Court. Instead, the Court continues to apply deference haphazardly from case to case with no clearly articulated reason for its variation. A close study of the cases, however, reveals both why the Court has been reluctant to adopt any of the proposed across-the-board standards of deference and what an appropriate framework for agency deference might look like. The Court’s inconsistent decisionmaking stems from its high regard for congressional intent when considering questions that implicate federalism. Chevron and the presumption against preemption provide conflicting indicia of congressional intent, and rather than universalize one principle at the expense of the other, the Court has applied deference selectively depending on its case-specific analysis of congressional intent. When the Court thinks it reasonable to presume delegation of preemptive authority, it is quite deferential to agency views. But, when it thinks congressional intent to delegate is unlikely, it accords little deference to preemptive agency interpretations.Critics of the Court’s Chevron–preemption jurisprudence correctly note its major flaw—its inconsistency—but they fail to recognize its purpose and benefits. By looking to congressional intent rather than universalizing a sometimes-inapplicable, across-the-board rule, the Court respects congressional intent where it intends to delegate preemptive authority, while protecting state sovereignty where it does not. Of course, the Court’s good intentions do not excuse the approach’s unpredictability. A superior approach would package the Court’s concern for state sovereignty and congressional intent into a predictable and easily administrable bright-line rule.The Court’s existing doctrinal distinction between express and implied preemption points to a possible solution. In express preemption cases, the Court does not need to enforce federalism values through the presumption against preemption because Congress has spoken clearly in favor of displacing state law. And if the scope of preemption is ambiguous, Chevron’s presumption of delegation through ambiguity to agency expertise is entirely reasonable. Agencies are quite competent to decide the proper scope of preemption once Congress has duly authorized it. On the other hand, where Congress has not spoken clearly through an express preemption clause, and the question is whether there is to be any preemption at all, Chevron’s rationale is particularly weak. Agencies are least competent when considering unbounded questions of federal–state power allocation, and Congress is unlikely to delegate authority of this sort.Given the waxing and waning force of Chevron’s rationale across cases, the Court should adopt a rule of variable deference that accords full Chevron-style deference to agency interpretations of ambiguously broad express preemption clauses and withholds deference altogether where Congress is silent regarding preemption. Such a rule, unlike any of the proposed across-the-board regimes, would recognize the factors that underlie the Court’s unpredictable case-by-case approach—respect for state sovereignty and congressional intent—while providing the rule-like certainty demanded by the Court’s critics.
PubDate: Tue, 06 Mar 2012 11:51:01 PST
- Fees From Mars: Why the FTC Needs to Regulate Mortgage Assistance Relief
Services (MARS) Fees
Authors: Alexander Lutch
Abstract: Providers of mortgage assistance relief services offer to help homeowners avoid foreclosure by negotiating with creditors on behalf of homeowners for loan modifications. Such providers charge a fee for these services, and have in the past often charged this fee upfront rather than after successful negotiations on the homeowner’s behalf.The FTC adopted a rule, pursuant to the 2009 Omnibus Appropriations Act and Credit Card Accountability Responsibility and Disclosure Act of 2009, that bars Mortgage Assistance Relief Services (MARS) providers from making false or misleading claims, institutes certain disclosure requirements relating to these services, and prohibits companies from charging fees upfront. This Recent Development argues that the FTC’s rule is a good first step in regulating the MARS industry, but that the FTC should have gone further and adopted regulations regarding the fees that MARS providers can charge. Specifically, the FTC should have restricted fees to fifteen percent of the savings that a borrower receives under a modification.
PubDate: Tue, 04 Oct 2011 14:49:31 PDT
- The Illusion of Interchangeability: The Benefits and Dangers of
Guidance-Plus Rulemaking in the FDA's Biosimilar Approval Process
Authors: Jonathan Stroud
Abstract: On March 23, 2010, President Obama signed into law the ambitious Patient Protection and Affordable Care Act. While media attention focused largely on the sweeping changes the bill makes to the nation’s healthcare system, there was also a less-noticed rider to the bill, the Biologics Price Competition and Innovation Act of 2009 (Biosimilars Act). The Biosimilars Act grants the Food and Drug Administration (FDA) broad new authority to create an accelerated premarket approval pathway for generic competition to biologics in an attempt to drive biologic drug prices down and reduce the overall costs of health care.Traditionally, inventors of medical products such as drugs and devices obtain patent protection at the United States Patent and Trademark Office (USPTO) for a twenty-year exclusive term and simultaneously must seek FDA approval to market their invention and for a trademark for their brand name.Because of the complicated and thorough approval process the FDA conducts, it is often expensive and time-consuming for the initial innovator to bring a drug to market. Likewise, it is often prohibitively expensive for a generic follow-on company to bring an analogue to market, after patent protection has expired, through duplicative and costly reapproval of the innovator drug, and it would be unethical to subject further human subjects to unneeded clinical trials.To deal with these problems, in 1984 Congress enacted a law called the Price, Competition, and Patent Term Restoration Act, which is commonly referred to as the Hatch–Waxman Act. The Act allows generic follow-on drugs to seek accelerated approval by the FDA. In exchange, the law grants limited data exclusivity—and hence, often de facto market exclusivity—for the original brand-name innovator. The Act utilizes a preexisting compilation of all relevant drugs and their clinical indications, the Orange Book, to list generic analogues. Most importantly, Hatch–Waxman allows generic drug manufacturers to use the same FDA approval data as the brand-name manufacturers had in an abbreviated approval application (thus eliminating the need for duplicative human trials and reducing cost for generic manufacturers). The result has been a decrease in the cost of prescription drugs due to increased price competition after the expiration of the original drug’s patent term.By formulating the Hatch–Waxman Act broadly, Congress has given the FDA wide flexibility to regulate. It has mandated the use of guidance documents, a less costly and time-consuming form of regulating than formal or even informal rulemaking. This guidance mandate has the advantage of increased flexibility and a faster turnaround time than traditional notice-and-comment rulemaking. Nevertheless, if the FDA does not use that flexibility judiciously, the Biosimilars Act may not achieve actual reductions in the cost of prescription biological drugs or significantly affect the cost of health care.Part I of this Comment discusses the Hatch–Waxman amendments, analogous foreign biosimilars pathways, and the history of biologics approval. Part II discusses the new bill, compares the Hatch–Waxman pathway with the potential biosimilars pathway, and explores key differences between the two that could delay access to both innovator and generic drugs. Part III recommends using notice-and-comment procedures to establish product-class-specific guidance, while retaining flexibility within product classes for clinical requirements, and discourages the FDA from using two-sided biostatistical testing.
PubDate: Tue, 04 Oct 2011 14:49:30 PDT
- The Department of Veterans Affairs' Entitlement Complex: Attorney
Fees and Adminsitrative Offset After Astrue v. Ratliff
Authors: Stacy L.Z. Edwards
Abstract: The Department of Veterans Affairs (VA) administers a benefits system designed to be largely paternalistic. An important aspiration of this benefits scheme is that the process should be navigable by a veteran without savvy legal prowess or the assistance of an attorney. Although the regulations governing attorney involvement have changed, the intentions behind them have not: VA insists it must protect veterans from lawyers. Congress, however, is less skeptical of legal representation and has enacted statutes designed to encourage lawyers to take the cases of deserving veterans that might prove too difficult to win otherwise. As part of this congressionally mandated incentive structure, the Equal Access to Justice Act (EAJA) is available as a way for plaintiffs, through VA’s pockets, to pay the fees for lawyers who “win” against the government before the Court of Appeals for Veterans Claims (CAVC). The EAJA does not compensate attorneys for work done on the vast majority of veterans’ claims, which never reach the courts but are instead adjudicated at the agency level. There is, however, a separate compensation scheme to encourage attorney participation in the adjudication of VA benefits.To ensure lawyers were not discouraged from representing veterans at this first, crucial stage, Congress instituted a contingency fee system: an attorney who succeeds in gaining benefits can receive 20% of the veteran’s past-due benefits award directly from the Secretary of Veterans Affairs. This largely straightforward system has raised few problems for attorneys and veterans—in most cases VA simply parcels out 20% to the attorney and then hands over the rest to the veteran. However, there is a small but critical area of complexity involving veterans who for whatever reason will not receive the entirety of their award. In these cases, the question becomes whether attorneys are to receive 20% of the original award or 20% of the award after offset or withholding.For veterans who still receive some portion of their award, the answer is on the books. By statute, contingency fees are to be calculated from any past-due benefits awarded on the basis of the claim; “award” does not mean amount payable to the veteran but the actual award prior to any withholding. Snyder v. Nicholson held that award, in the “parlance of veterans’ benefits,” means “the amount stated as the award for success in pursuit of a claim for benefits.” Thus, even though a veteran might receive only a portion of his award, the attorney will still receive 20% of the original. This all flows from the idea that contingency fees in veterans’ benefits cases belong, by statute, to the attorney—and are thus payable directly from the benefits awarded on the claim, rather than being calculated from the actual payment to the veteran.This result reflects Congress’s decision to promote attorney participation in the VA process by guaranteeing enforcement of a 20% contingency fee agreement should the veteran win the claim. But VA regulations institute a caveat: a contingency fee agreement will be upheld only if the award of past-due benefits “results in a cash payment to a claimant . . . from which the fee may be deducted.” By using results, VA asserts that contingency fee agreements lose their statutory protection if the claimant, by virtue of indebtedness to the United States, does not receive any payment at all. If no “fund” of past-due benefits is created, VA maintains that there is no percentage of that fund to which an attorney can be entitled. VA further reasons that if the veteran, as assignor, has no right to receive payment of any part of the past-due benefits, then his attorney, as assignee, cannot have such a right either. This policy has troubling consequences: by protecting only the fee agreements of veterans not in debt to the government beyond their claims’ values, VA in fact ensures that some of the neediest veterans cannot retain legal representation.
PubDate: Tue, 04 Oct 2011 14:49:28 PDT
- Rule by Reasonableness
Authors: David Zaring
Abstract: Administrative law’s complicated jurisprudence on standards of review is both a mess, in that it lacks coherence, and a distraction, in that courts affirm agencies slightly more than two-thirds of the time regardless of the doctrine deployed. It would be better to replace the jurisprudence with a reasonable agency standard. Such a standard would simplify and clarify administrative law, better describe what courts actually do when confronted with agency action, and better explain the judicial role in the administrative state. Rule by reasonableness is, moreover, the rule in negligence law, Fourth Amendment law, and arguably in financial regulation as well. Although a broad standard, reasonableness has created a tractable, predictable, and realistic jurisprudence in these areas; administrative law would do well to heed these lessons.
PubDate: Tue, 04 Oct 2011 14:49:27 PDT
- An Empirical Study of Agency Interpretations of Agency Rules
Authors: Richard J. Pierce Jr et al.
Abstract: In this essay, Pierce and Weiss report the results of a study of judicial review of agency interpretations of agency rules. Prior studies found that, while courts at all levels uphold about 70% of agency actions, the Supreme Court upholds 91% of agency interpretations of agency rules. Pierce and Weiss find that lower courts do not confer this type of “super-deference” on agency interpretations of agency rules. District courts and circuit courts uphold 76% of such agency actions. That is within the range of the findings of prior studies of judicial review of other types of agency actions and much lower than the rate at which the Supreme Court upholds agency interpretations of agency rules. Pierce and Weiss also find no evidence that judges are influenced by their political or ideological preferences when they review agency interpretations of agency rules. That finding is consistent with the findings of a prior study of judicial review of agency findings of fact, but it is inconsistent with the findings of several studies of judicial review of agency interpretations of agency-administered statutes and of judicial review of agency policy decisions.
PubDate: Tue, 04 Oct 2011 14:49:26 PDT
- An Inductive Understanding of Separation of Powers
Authors: Jack M. Beermann
Abstract: Separation of powers is one of least understood doctrines in U.S. law and politics. Underlying a great deal of separation of powers analysis is the conventional view that the United States Constitution requires a strict separation between the three branches of government, and that efforts within one branch to influence or control the exercise of another branch’s powers are illegitimate and should be rejected whenever possible. Although its simplicity might be appealing, this image of strict separation is inconsistent with both the Framers’ understanding of separation of powers and with the law as developed by the Supreme Court in the face of the explosive growth of the regulatory state over more than a century. This Article articulates an inductive understanding of separation of powers as practiced under the United States Constitution, arrived at by examining case law and actual practice, not deduced from general principles or an ideal conception of separation of powers. Although the Supreme Court’s recent decision in Free Enterprise Fund v. Public Company Accounting Oversight Board adverted to the Vesting Clause of Article II, the Vesting Clauses of the Constitution’s first three articles have not been particularly important to the resolution of actual disputes over the separation of powers. The Court does not decide separation of powers controversies by determining the nature of a power and then assigning it to the appropriate branch as specified in the Vesting Clauses. Using examples from across the spectrum of separation of powers controversies, this Article establishes that the basic principle of separation of powers under the United States Constitution involves strict enforcement of the Constitution’s structural and procedural requirements for action by each branch, but great flexibility and deference to Congress when ruling on whether a more general principle of separation of powers has been transgressed.
PubDate: Tue, 04 Oct 2011 14:49:25 PDT
- Lobbying Law in the Spotlight: Challenges and Proposed Improvements
PubDate: Tue, 04 Oct 2011 14:49:23 PDT
- Administrative Law Judges' Removal "Only For Cause": Is That
Administrative Procedure Act Now Unconstitutional'
Authors: Jerome Nelson
Abstract: Under the Administrative Procedure Act (APA), administrative law judges (ALJs) are removable by the employing agency “only for good cause established and determined by the Merit Systems Protection Board.” The constitutionality of that sixty-four-year-old protection may now be questionable under the recent Supreme Court decision in Free Enterprise Fund v. Public Co. Accounting Oversight Board.The Sarbanes–Oxley Act (the Act) created the Public Company Accounting Oversight Board (PCAOB or Board) with extensive regulatory powers over the accounting industry. Board members are appointed by the Securities and Exchange Commission (SEC) and can be removed only “for good cause” by SEC members, who themselves can be removed by the President only “for cause.” In an opinion by Chief Justice Roberts, the Court (by a 5–4 vote) held that this double “for cause” protection created an unconstitutional legislative intrusion on the President’s power to remove officers—a violation of the constitutional separation of powers principle. To cure this defect, the Court excised the Board members’ “for cause” protection and declared that they would now be removable by the Commission at will.Justice Breyer’s dissent argued that the two “for cause” layers passed muster under a “functional” approach to separation of powers. He also reasoned that the job security and decisions of many high-ranking federal employees with double for cause protection—including all ALJs—were left “constitutionally at risk.” These nearly 1600 judges generally hear and decide a variety of cases which Congress thought significant enough to warrant formal hearings, and Justice Breyer questioned whether “every losing party before an ALJ now ha[s] grounds to appeal on the basis that the decision entered against him is unconstitutional'”This Recent Development argues that ALJs are fundamentally different from PCAOB members and should not be covered by the Free Enterprise rationale. Eliminating the adjudicatory independence conferred by the APA’s good cause provision would undermine the adjudicatory process by subjecting ALJs to agency pressure and possible retaliatory agency action for decisions perceived as unfavorable.
PubDate: Tue, 02 Aug 2011 06:45:47 PDT