Category Archives: Administrative Law

A ‘Reform’ Much Worse than the Problem

I’ve signed a law professors’ letter opposing HR 3010, the so-called “Regulatory Accountability Act of 2011.” Even by DC standards, this bill is unusually bad. The following summary, from Regulatory reform good for multinationals, yet bad for you, isn’t actually as alarmist as it sounds:

However, a thorough reading of the RAA leads to three conclusions. First, the bill will likely to dramatically drive up the cost of almost every rule-making process and budget of a federal agency. Second, federally elected officials will be stripped of their ability to responsibly lead our country. And third, the RAA is a highway to never-ending lawsuits by special interests against the federal government.

The RAA is designed to micromanage every federal agency in its efforts to create rules necessary to carry out legislation passed by Congress.

By doing so, it turns over 60 years of effective regulation promulgation under the Administration Procedures Act into a protracted process that will stretch the time needed for rule-making into decades. Federal agency budgets will need to be expanded by hundreds of billions of dollars to comply with the RAA and perform their usual functions of protecting the public and small businesses from unsafe products and practices.

… the legislation is a corporate lobbyist dream. It appears to have been written by corporate attorneys for corporate attorneys

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This Looks Good

Rachel E. Barkow, Institutional Design And The Policing Of Prosecutors: Lessons From Administrative Law, 61 Stan. L. Rev. 869 (2009).

Federal prosecutors wield enormous power. They have the authority to make charging decisions, enter cooperation agreements, accept pleas, and often dictate sentences or sentencing ranges. There are currently no effective legal checks in place to police the manner in which prosecutors exercise their discretion. As a result, in the current era dominated by pleas instead of trials, federal prosecutors are not merely law enforcers. They are the final adjudicators in the 95% of cases that are not tried before a federal judge or jury. In a government whose hallmark is supposed to be the separation of powers, federal prosecutors are a glaring and dangerous exception. They have the authority to take away liberty, yet they are often the final judges in their own cases. One need not be an expert in separation-of-powers theory to know that combining these powers in a single actor can lead to gross abuses. Indeed, the combination of law enforcement and adjudicative power in a single prosecutor is the most significant design flaw in the federal criminal system. Although scholars have made persuasive cases for greater external controls on prosecutors, these calls for reform are unrealistic in the current political climate. The solution must be sought elsewhere.

This Article looks within the prosecutor’s office itself to identify a viable corrective on prosecutorial overreaching. In particular, by heeding lessons of institutional design from administrative law, this Article considers how federal prosecutors’ offices could be designed to curb abuses of power through separation-of-functions requirements and greater attention to supervision. The problems posed by federal prosecutors’ combination of adjudicative and enforcement functions are the very same issues raised by the administrative state—and the solutions fit equally well in both settings. In both instances, individuals who make investigative and advocacy decisions should be separated from those who make adjudicative decisions, the latter of which should be defined to include some of the most important prosecutorial decisions today, including charging, the acceptance of pleas, and the decision whether or not to file substantial assistance motions. Using this model from administrative law would not only be effective, it would also be more politically viable than the leading alternative proposals for curbing prosecutorial discretion.

Administrative law values are not inevitably good, but they are often good.

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Law Students Take Note!

Attention all law students: Why all lawyers – even criminal law types – need to understand administrative law. It's not just me saying it.

Tragically, half of the law students in the US graduate without taking Administrative law, which is rarely a required course. Many, many of them are sorry later.

Of the courses I teach, it's Administrative Law that students most frequently come back years later and thank me for.

Yes, it's a very hard subject. Yes, it's not on the bar exam. But you need it.

Administrative Law is rarely oversubscribed in any law school. Sign up now.

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Funniest Headline of the Day

Spotted via Kos, Effect Measure : Bush administration is protecting privacy and constitutional rights — of tomatoes.

The headline is actually slightly unfair, at least as to the constitutional rights part, but it's still funny.

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Wrong APA

There I was getting all excited by this teaser link at Brian Leiter's blog, “How the APA Stole Christmas”.

Someone writing about the Administrative Procedure Act? In the holidays? What fun!

But no, it's about the American Philosophical Association job fair. Which, incidentally, sounds much worse than the AALS's version.

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Limits on Acting

Further to my musings on constitutional limits on “acting” officials, a self-professed “Very Unimportant Government Lawyer With Nothing Better To Do” draws my attention to 5 USC 3346, which imposes a statutory limit of 210 days or so in which an official can be “acting” in the absence of a nomination to a post.

The statute doesn't explain who takes over if the 210+ day period lapses — I presume it's the next in line for the job, (unless the President designates someone else).

(a) Except in the case of a vacancy caused by sickness, the person serving as an acting officer as described under section 3345 may serve in the office –

(1) for no longer than 210 days beginning on the date the vacancy occurs; or (2) subject to subsection (b), once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate.

(b)(1) If the first nomination for the office is rejected by the Senate, withdrawn, or returned to the President by the Senate, the person may continue to serve as the acting officer for no more than 210 days after the date of such rejection, withdrawal, or return.

(2) Notwithstanding paragraph (1), if a second nomination for the office is submitted to the Senate after the rejection, withdrawal, or return of the first nomination, the person serving as the acting officer may continue to serve –

(A) until the second nomination is confirmed; or (B) for no more than 210 days after the second nomination is rejected, withdrawn, or returned.

(c) If a vacancy occurs during an adjournment of the Congress sine die, the 210-day period under subsection (a) shall begin on the date that the Senate first reconvenes.

Hard-core separation of powers dorks will want to take a look at Doolin Security Savings Bank v. Office of Thrift Supervision 139 F.3d 203 & 156 F.3d 190, wherein among other fascinating things, a diverse panel of the DC Circuit agrees unanimously that the head of the Office of Thrift Supervision is an “Officer of the United States” and that the 210 day clock starts when an acting person starts in on his job and not when the vacancy occurs.

(Adlaw mavens may be startled at the discussion of harmless error in a separation of powers case. I was.)

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