Notice & Comment

Tribute to Ron Levin, by Jeffrey Lubbers

Ronald M. Levin is a Professor’s Professor. He joined the Washington University (St. Louis) School of Law in 1979 as an Assistant Professor, is now the William R. Orthwein Distinguished Professor, and teaches a full slate of courses including Administrative Law, Election Law, Civil Procedure, and Immigration Law. But it is Administrative Law where his accomplishments, scholarship, leadership, and behind-the-scenes activities have left a lasting legacy and helped steer our discipline in a straight and steady line through stormy political times.

Perhaps this was foreordained, when as a student Articles Editor on the University of Chicago Law Review, he was assigned to edit an article by a young University of Colorado Law Professor named Stephen F. Williams, entitled “Hybrid Rulemaking” Under the Administrative Procedure Act: A Legal and Empirical Analysis, 42 U. Chi. L. Rev. 401 (1975). Professor Williams, of course, became the celebrated judge on the D.C. Circuit and that article became the basis for the influential ACUS .Recommendation 76-3, “Procedures in Addition to Notice and the Opportunity for Comment in Informal Rulemaking.” 

I should here mention my own affiliations with Ron. I’ve used his excellent casebook, State and Federal Administrative Law (5th ed. 2020), co-authored with the estimable Michael Asimow, my entire teaching career, and he invited me to join his sixth edition of his Administrative Law and Process In A Nutshell (2017), which I had been a fan of, and he had co-written with Ernie Gellhorn for many years. 

But I’ve also seen him in action in a myriad of ABA, ACUS, and other law reform activities over the years. He has held almost every possible office in the ABA Adlaw section—Section Chair, Council Member, Committee Chair, and Reporter for special projects on Lobbying Reform, the Administrative Law of the European Union, and on Congressional Process. He has been a long-time Section Delegate to the ABA House of Delegates. One of his most effective roles for the ABA was serving as the ABA Advisor to the Drafting Committee to Revise the Model State Administrative Procedure Act, sponsored by the Uniform Law Commission. There is little doubt that the 2010 Model State APA is much the better for Ron’s typical close attention to detail.

Ron also has served the Administrative Conference as a consultant, Chair of its Committee on Judicial Review for five years, and as an active Senior Conference Fellow. His work as a young scholar in the early 1980s on the Bumpers Amendment—the precursor to later attempts to rein in judicial deference to agency statutory interpretations—is still highly relevant today. (See ACUS Recommendations 79-6 and 81-2.) In 1986, for the Adlaw Section of the ABA, he wrote what would become a precursor to the Section’s subsequent Blackletter Statement of Federal Administrative Law, when he crafted the Scope-of-Review Doctrine Restated: An Administrative Law Section Report, 38 Admin. L. Rev.239 (1986). Since then he has written the definitive articles on Unreviewability in Administrative Law; Step Two of Chevron; Remand Without Vacatur; Direct-Final Rulemaking; Fixing the APA’s Definition of “Rule”; Hard Look Review, Policy Change, and Fox Television; as well as important contributions on such subjects as Agency Guidance, Congressional Constituent Advocacy, Issue Exhaustion in Rulemaking, Statutory Time Limits for Judicial Review, and the REINS Act. (Citations for these articles can be found here.)

The last article, on the REINS Act, leads me to some of Ron’s most important work—safeguarding the Administrative Procedure Act from ill-advised changes. As we approach the 75th anniversary of the APA, it is a good time to think about the various eras where “regulatory reformers” sought to “modernize” or transform the APA by adding numerous requirements mainly to its notice-and-comment rulemaking process. Ron wrote about this on the occasion of the 50th anniversary, but his statement still rings true today. In his article, written at the time of numerous proposals in Congress supported by business groups to revise the APA, Ron wrote:

As events unfold in Congress in coming months, we students of administrative law may soon find ourselves nostalgic for the brevity, openendedness, and relative political neutrality of the 1946 APA. As its fiftieth anniversary approaches, we should wish it—sincerely, if apprehensively—many happy returns.

Administrative Procedure Legislation in 1946 and 1996: Should We Be Jubilant at this Jubilee?, 10 Admin. L.J. Am. U. 55, 64 (1996).

Ron’s desire to protect the APA, which I think we both regard as Administrative Law’s constitution, from drastic change is not just a matter of historic preservation. Nor is it a political stand. I think it is a well-considered belief on his part that, although the Act may not be perfect, it provides a fair and workable framework for administrative procedure that should not be lightly disturbed. And that protecting it requires continued vigilance. 

The REINS (Regulations from the Executive in Need of Scrutiny) Act was a bill that would have stipulated that any proposed major rule would only go into effect if it were approved by both houses of Congress and signed by the President—which would effectively doom most such regulations whenever there was a split Congress or different parties in control of the two branches. This bill passed the GOP-controlled House in several Congresses, and was gaining some support in the Senate as well. Ron’s article (the title of which says it all) helped put this proposal in a proper light, The REINS Act: Unbridled Impediment to Regulation, 83 Geo. Wash. L. Rev. 1446 (2015). 

Another, broader, amendment to the APA’s rulemaking process known as the Regulatory Accountability Act, originally introduced in 2011, was also on a similar track during this period. It too had passed the House and was gaining traction in the Senate. While there were some useful reforms in the bill, these were far outweighed by the across-the-board provisions requiring extensive new analytical and judicial review requirements for rules and reviving the use of the long discredited “formal” rulemaking. Ron led the effort to organize a detailed 37-page letter from the Section to Congress commenting extensively and mostly skeptically about how this bill would impact the rulemaking process, and helped the bill deservedly die on the vine.

Ron has testified many times on these matters before Congress. He also was one of the few contrarian speakers at a Department of Justice conference/rally during the Trump Administration on the need to “modernize” the APA. A final example of Ron’s activism in favor of “not fixing what is not broke” is his amicus brief (with Gillian Metzger) advocating for the retention of the Auer doctrine in the case of Kisor v. Wilkie, 139 S. Ct. 2400 (2019). Justice Kagan, writing for the majority to preserve the doctrine, prominently cited this brief, 139 S. Ct. at 2412.

In 2005, Ron wrote a discerning tribute to his (and my) Administrative Law teacher, Kenneth Culp David who had died in 2003. Ron wrote about him: “Davis left no doubts about his passionate conviction that the challenges of inducing agencies to perform their functions fairly and effectively were important, and that he had a host of worthwhile ideas about possible solutions to those problems.” The Administrative Law Legacy of Kenneth Culp Davis, 42 San Diego L. Rev. 315, 317 (2005).

In personality terms, Ron could not be more different than K.C. Davis. Ron is mild-mannered, unfailingly polite, and someone who looks for, and generally finds, a way to cool overly heated debates and to achieve a needed compromise. Professor Davis was not like that, he had his own rather single-minded approach, but I think that Ron’s description of him nonetheless also applies to Ron himself—both in terms of his passion and in his worthwhile ideas about solutions (and sometimes just as important) non-solutions.

Jeffrey Lubbers is a Professor of Practice in Administrative Law and former Research Director of the Administrative Conference of the United States, 1982-1995.

This post is part of the ABA Administrative Law Section Series Celebrating Public Service; all the posts in the series are collected here

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