The George Washington Law Review invited me to pen the foreword to its annual administrative law issue this year, and I decided to use the opportunity to think a bit bigger about the future of administrative law. I’ve posted to SSRN a draft of that foreword, entitled Proportionality in Administrative Law. I’m honored to share the volume with Margaret Kwoka and Maria Ponomarenko. The latter has posted a draft of her paper, Revisiting Presidential Reorganization, on SSRN here.

Here’s the abstract for my paper:

In this era of rapid change in administrative law—both at the Supreme Court and from the White House—the foreword to the law review’s annual administrative law issue presents a timely opportunity to take stock of the future of regulatory governance. This Foreword argues that, especially in this time of flux, we should seek to embrace proportionality as an organizing principle in administrative law. The more important or impactful a regulatory action, the more involved Congress should be in making the major value judgments, the more procedure we should require from agencies, and/or the more searching review we should expect from courts. The converse is also true. For minor regulatory actions where agencies merely fill up the details of a statutory scheme, we should deproceduralize at the agency level and expect light-touch judicial review. In between the major and minor actions, the role of Congress, the extent of agency procedures, and the scope of judicial review should be calibrated, where possible, to be proportional to the importance of the regulatory action. 

There have been hints of proportionality in recent years. The Supreme Court, for instance, has introduced a major questions doctrine, which requires a clear statement from Congress to delegate significant value judgments to federal agencies. It has also focused on proportionality when it comes to statutory interpretation and agency delegations, arbitrary-and-capricious review of agency policymaking under the Administrative Procedure Act, and officer status under Article II of the U.S. Constitution. Last Term, the Court recognized the importance of proportionality when it limited the scope of injunctive relief in Trump v. CASA and rebuffed a nondelegation doctrine challenge in FCC v. Consumers’ Research. Within the Executive Branch, we have also seen some embrace of proportionality. For instance, in the first Trump administration, the Department of Transportation via internal administrative law adopted formal rulemaking for its most important rules. And in the Biden administration, the Office of Information and Regulatory Affairs doubled the threshold for centralized review of agency rulemaking to significant rules that have at least a $200-million economic impact. This Foreword argues that the Supreme Court and the Executive Branch can and should embrace proportionality on their own in many respects, and documents the ways they have already done so. To fully implement this vision, however, Congress must get involved to ingrain proportionality in administrative law and regulatory practice.

You can download the current draft of the paper here. It’s an early working draft, so I still have time to incorporate comments.