The Freedom of Information Act (“FOIA”) makes “agency records” available to the public upon request, but leaves the term “agency record” undefined. In Forsham v. Harris, 445 U.S. 169 (1980), the Supreme Court ruled that FOIA did not reach documents created and held by government contractors. Later, in U.S. Dep’t of Justice v. Tax Analysts, […]
Kent Barnett and I recruited political scientist Christina Boyd as a coauthor to mine our Chevron in the circuit courts dataset in a more sophisticated manner. We just posted to SSRN a draft of our latest article from this dataset—Administrative Law’s Political Dynamics—which is forthcoming in the Vanderbilt Law Review. I’ll be blogging more about this […]
Chevron deference, which requires courts to defer to reasonable agency interpretations of statutes that the agency administers, is a central doctrine of administrative law. Despite its importance, Chevron rests on uneasy ground. Critics have raised various legal objections to the doctrine. One is that requiring courts to defer to agency interpretations of statutes violates the […]
I am honored to have the chance to review Jon Michaels’s engaging, brilliantly written, and insightful work. Constitutional Coup is a very enjoyable read, chock-full of creative word pictures like Michaels’s description of the “torch and pitchfork crowd” out to get the “Nanny State.” As Jeff Pojanowski and others have observed, the book is thought-provoking […]
Jon Michaels’ new book is a masterful blend of important and fascinating subjects, including the constitutional character of administrative law, superstatute theory, privatization, and procedure. It’s a fun read, too, and a must for anyone interested in a fresh perspective on the perils of privatization! In this post, however, I’m going to focus on some discrete details of […]
Credit where credit is due: the Trump administration announced yesterday that it won’t look the other way if Idaho flouts the Affordable Care Act. The ACA “remains the law and we have a duty to enforce and uphold the law,” CMS administrator Seema Verma explained in a letter to Idaho’s governor and its insurance director. Maybe it’s a […]
The D.C. Circuit did a rare thing this week — in fact, it did it twice. It revisited opinions that the Court had already issued. In Detroit International Bridge v. Government of Canada, the Court “reissued” an opinion from several months ago by making a few minor changes. And in American Petroleum Institute v. EPA, […]
There are a number of ways to be unhappy about the federal administrative state we have today. One is straightforwardly libertarian. The administrative state allows substantial, systematic interference with private ordering in a way that Congress, acting alone could not (and should not even try). Another way to be unhappy about the federal administrative state […]
Jon D. Michaels’s new book, Constitutional Coup: Privatization’s Threat to the American Republic, offers a creative and—in my view—persuasive defense of the modern administrative state. I agree with Michaels that the tripartite allocation of authority among agency leaders, civil servants, and federal courts endows the administrative state with a measure of democratic legitimacy while also […]
Jon Michaels’ imaginative, insightful book portrays the administrative state in a new and thought-provoking light. He argues that the modern arrangement of agency leaders, civil servants, and civil society—“the administrative separation of powers”—recreates the internally rivalrous, tripartite structure that he sees as central to the federal constitutional design. And he makes an impassioned call that […]
There are already so many thorough analyses, illustrative applications, and thoughtful extrapolations of Jon Michaels’s provocative thesis, it took some time to decide where anything more might be usefully contributed. It is, I think, at the conceptual role “privatization” plays in Constitutional Coup’s core argument. The threat privatization poses to our fundamental constitutional order, according […]
I have long admired Jon Michaels’ work on separation of powers and government privatization, so I was thrilled to learn he had further synthesized these strands of his research in a book-length treatment: Constitutional Coup: Privatization’s Threat to the American Republic. And I’m excited we’re hosting this symposium on the book here at the Notice and […]
Jon Michaels has written an important book — and I say that even though I suspect that he and I disagree about many things! Although the administrative state has value, it also “has its share of problems.” For instance, the federal government sometimes overreaches in “ominous” and even “crushing” ways. Like the Chief Justice, I’m […]
This week, the Administrative Conference of the United States will being spring committee meetings on a slate of new projects, including: (1) Administrative Judges; (2) Electronic Case Management in Adjudication; (3) Minimizing the Costs of Judicial Review; (4) Paperwork Reduction Act Efficiencies; and (5) Public Engagement in Rulemaking. The first four projects are targeted for completion at […]
This week, the Notice and Comment blog is hosting a web symposium on Jon Michaels’s book, Constitutional Coup: Privatization’s Threat to the American Republic. In the years leading up to this book, Michaels, who is a Professor of Law at UCLA Law School, has written extensively and thoughtfully on administrative law, constitutional structure, and the […]