Author:West, Kyle

The last ninety years of American government have been characterized by, if nothing else, an ever-expanding administrative state. Given the massive increase in federal power generally, its concentration in the hands of the executive branch raises critical questions of oversight, accountability, and discretion that are still playing out in the courts. For this Issue, the Journal asked a number of leading scholars to address the conflict between executive discretion and the rule of law.

Curt Levey and Kenneth Klukowski open the issue with an Article outlining a broadly envisioned duty of the executive to defend congressionally enacted laws--even when he believes those laws to be unconstitutional. Next, John Graham and Cory Liu introduce a series of five papers (including their own), which explore the various ways in which federal regulatory agencies evade the notice and comment process required under the Administrative Procedure Act (APA). This first Article details and examines some of the many methods that agencies use to circumvent APA procedures and OIRA review. Employing game theoretic principles, Professors Nina Mendelson and Jonathan Wiener then examine a number of these methods in detail, alongside potential responses that might be used to limit agency evasion of oversight. Professor Stuart Shapiro argues that increased proceduralization of non-legislative rules (such as guidance documents) has, in the past, been largely unsuccessful, and will continue to be so in the future. These findings imply that effective reform might be dependent on the courts. Jerry Brito then provides an in depth examination of the practice and propriety of agencies issuing unenforceable threats in order to achieve desired regulatory outcomes. Finally, Professors Henry Butler and Nathaniel Harris contribute a case study on the Environmental Protection Agency's practice of entering into settlement decrees--often with non-adverse parties--that prevent the States from playing their statutorily designated role in environmental regulation.

Rounding out the Issue is a lightly edited version of a speech on the importance of state courts that Judge Jennifer Walker Elrod recently gave...

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