Every year I look forward to the George Washington Law Review‘s Annual Review of Administrative Law, as the editors do a great job of selecting articles for inclusion in the issue. (I’m not just saying that because they published the first article I wrote after joining the law faculty here.)
This year’s issue was just published, and it’s terrific. The foreword, entitled Overseeing Agency Enforcement and written by Rachel Barkow, explores the important yet oft-neglected (at least in the adlaw literature) topic of agency enforcement policies and how to structure oversight of such policies that are often insulated from judicial review.
The two articles in this issue are also fascinating. First, in Chevron Bias, Philip Hamburger builds on his book Is Administrative Law Unlawful?, arguing that Chevron deference raises constitutional concerns because it intrudes on the judiciary’s independent judgment about what the law is and raises Fifth Amendment due process concerns by asking courts to engage in systematic bias in favor of the government and against the regulated. Second, in Preambles as Guidance, Kevin Stack builds on his terrific work on interpreting regulations* by fleshing out how preambles (those not-really concise and general statements of basis and purpose that accompany rules) are a superior source of agency guidance.
As a bonus, the issue also includes an essay by Dick Pierce, entitled The Future of Deference, in which he argues that the scope and strength of administrative law’s deference doctrines will continue to weaken in coming years. For what it’s worth, my own take is that with Justice Scalia’s passing, we may see the Supreme Court embrace Chief Justice Roberts’s more context-specific approach to Chevron deference as articulated in his dissent in City of Arlington v. FCC and in his opinion for the Court in King v. Burwell.
Finally, the issue includes five student essays on various hot topics in administrative law:
- Laura Ferguson, Revisiting the Public Rights Doctrine: Justice Thomas’s Application of Originalism to Administrative Law
- Matthew Mezger, Using Interpretive Methodology to Get Out from Seminole Rock and a Hard Place
- Lidiya Mishchenko, In Defense of Churches: Can the IRS Limit Tax Abuse by “Church” Impostors?
- Kyle Singhal, Disclosure, Eventually: A Proposal to Limit the Indefinite Exemption of Federal Agency Memoranda from Release Under the Freedom of Information Act
- Maxwell Weiss, The Constitutionality of SEC Administrative Law Judges: Exploring Hill v. SEC
Definitely check out the full issue here.
* In case you’re interested in this debate about how courts should interpret regulations, last year I penned a short research note that empirically assessed Stack’s arguments regarding preambles as authoritative sources of regulatory meaning.
This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.