Notice & Comment

D.C. Circuit Review – Reviewed: Dead Hands

I’m on vacation so this will be a quick post. Thankfully, the D.C. Circuit cooperated — we have just two cases.

My “con law” friends spend a lot of time thinking about dead hands. Normatively, why is it, they wonder, that decisions made by those who have long since died continue to have legal effect, even when those decisions could not command majority support today? An important response to this objection is stability. Because lawmakers today know that their own decisions will have lasting effect, they are better able to legislate over the long run. Thus, the argument goes, we must enforce the edicts of dead hands in order that today’s living hands can themselves make long-term policy.

Administrative law, however, has its own version of the “dead hand” problem — and one that may require a different justification. In particular, a great deal of administrative discretion is the result of delegations made decades ago. Normatively, why should today’s society be governed by those very old delegations? But here is the twist: stability may not work as a justification. The difference between these dead hands and the more traditional dead hands is that whereas traditional entrenchments lock the law in place, administrative law’s dead hands are often authorization for regulators to unsettle things. Indeed, because of old delegations, modern presidents can use the administrative state to create new policies. And rather than promoting stability, this particular dead-hand problem can create instability as law zig zags across administrations. To be sure, the fact that a dead-hand problem may exist doesn’t by itself equal illegality — that would be a much trickier conversation involving many more steps. But it is interesting.

As regular readers know, my research in recent years has addressed stability in administrative law. But I’ve never squarely thought about how to think about dead hands in administrative law. That’s why I’m so excited about a forthcoming article — Delegation and Time — by Chris Walker and Jonathan Adler.* Here is the abstract:

Most concerns about delegation are put in terms of the handover of legislative power to federal agencies and the magnitude of the legislative policy decisions made by such agencies. Likewise, most reform proposals, such as the Congressional Review Act and the proposed REINS Act, address these gap-filling, democratic-deficit concerns. The same is true of the judicially created non-delegation canons, such as the major questions doctrine and other clear-statement rules. This Article addresses a different, under-explored dimension of the delegation problem: the temporal complications of congressional delegation. In other words, broad congressional delegations of authority at one time period become a source of authority for agencies to take action at a later time that was wholly unanticipated by the enacting Congress or could no longer receive legislative support. This problem has taken on added significance in the current era of congressional inaction.

To address this distinct, temporal problem of delegation, we suggest that Congress revive the practice of regular reauthorization of statutes that govern federal regulatory action. In some circumstances, this will require Congress to consider adding reauthorization incentives, such as sun-setting provisions. In other regulatory contexts, Congress may well decide the costs of mandatory reauthorization outweigh the benefits. Nevertheless, we argue that Congress should more regularly use this longstanding legislative tool to mitigate the democratic deficits that accompany broad delegations of lawmaking authority to federal agencies and spur more regular legislative engagement with federal regulatory policy. A return to reauthorization would also strengthen the partnership between Congress and the administrative state as well as mitigate some of the major concerns that have been raised in recent years regarding Chevron deference.

This is an important idea. Time is something that constitutional scholars think about. Administrative scholars should do the same.


The D.C. Circuit decided just two cases this week (which means August will be very busy). The common denominator is that “a motion to [a court’s] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles.” In both cases, the lower court abused its discretion by relying on erroneous considerations.

In In re Sealed Case, Judge Ginsburg (joined by Judges Griffith and Srinivasan) concluded that the Tax Court erred by concluding that “a ‘serial filer’ of whistleblower claims” cannot proceed anonymously. The Tax Court reasoned:

Unless we identify serial filers by name, the public will be unable to judge accurately the extent to which the serial filer phenomenon has affected the work of the Tax Court because the public would not know whether any particular petitioner … had filed petitions appealing other adverse whistleblower determinations.

To which the D.C. Circuit responded:

It simply does not follow that the public must know the serial filers’ names in order to determine either the extent to which serial filers affect the work of the Tax Court or whether any particular whistleblower is a serial filer. As the Appellant correctly points out, the Tax Court can serve those interests by alerting the public to the serial filer’s history and by explaining the burdens that serial filers impose upon the court; indeed, that is precisely what it did in this case. The use of a unique pseudonym (John Doe, Jane Roe and the like) in all the cases filed by a particular filer would similarly inform the public in the two respects identified by the Tax Court.

The D.C. Circuit thus remanded for the Tax Court to consider the issue anew. Going forward, I suspect that this will be an important case for whether folks will be allowed to proceed via “John Doe” suits.

United States v. McIlwain — authored by Chief Judge Garland (joined by Judge Tatel) — is similar. A district court has discretion whether to turn over a probation officer’s sentencing recommendation. But that discretion does not allow a district court to never divulge, as “a reason that applies in every case is not a case-specific reason. It is a uniform policy. And Rule 32 does not authorize an individual judge to issue a nondisclosure order on that basis.” (Judge Sentelle concurred in the judgment.)

* In the interest of disclosure: I’m friends with both Adler and Walker. I also often co-author with Chris about qualified immunity.

D.C. Circuit Review – Reviewed is designed to help you keep track of the nation’s “second most important court” in just five minutes a week.

Print Friendly, PDF & Email