Notice & Comment

Administrative Law Professors’ Amicus Brief in United States v. Texas

Earlier this week my co-blogger Michael Kagan had a great post on the Federal Government’s opening brief in United States v. Texas—the Supreme Court case regarding the Obama Administration’s executive actions on immigration that will be argued in April.

I wanted to highlight one of the amicus briefs in support of the United States by the “who’s who” of administrative law scholars—Dan Farber, Michael Herz, Ron Levin, Jerry Mashaw, Nina Mendelson, Gillian Metzger, Anne O’Connell, Dick Pierce, Susan Rose-Ackerman, Kevin Stack, Peter Strauss, and Adrian Vermeule. This brief is a rich and fascinating read, in which they argue that the DAPA memorandum is a general statement of policy and thus not subject to notice-and-comment rulemaking.

My favorite part of the brief focuses on the need for higher-level agency officials to be able to bind street-level officers within the agency. Here’s a taste of their argument (at 4):

As amici and other administrative law scholars have explained, it is critical for agency heads to be able to bind lower-level agency employees to ensure that the agency’s policies are reliably carried out. See, e.g., Gillian E. Metzger, The Constitutional Duty To Supervise, 124 Yale L.J. 1836 (2015); 3 Richard J. Pierce, Jr., Administrative Law Treatise § 17.3 (5th ed. 2010) (“Pierce”); Peter L. Strauss, Publication Rules in the Rulemaking Spectrum: Assuring Proper Respect for an Essential Element, 53 Admin. L. Rev. 803 (2001). Requiring notice and comment every time an agency head promulgates binding internal guidance would fundamentally impair agency heads’ ability to direct the agencies they are statutorily charged with overseeing. Discretion at the level of the agency head, not discretion by lower-level staff, is therefore the essential factor.

Definitely go give the brief a full read here .


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