The Future of Administrative Law
| Date | 01 March 2017 |
47 ELR 10186 ENVIRONMENTAL LAW REPORTER 3-2017
The Future of Administrative Law
Matthew Oakes (moderator) is a Trial Attorney in the
Environment and Natural Resources Division of the U.S.
Department of Justice.
Donald Verrilli is the former Solicitor General of the
United States.
Richard Pierce is the Lyle T. Alverson Professor of Law at
George Washington University.
Jody Freeman is the Archiba ld Cox Professor of L aw at
Harvard Law School.
Matthew Oakes: is rst panel will address the future of
administrative law. Before we begin, I’d like to introduce
the panelists. First is Donald Verrilli, who was the Solicitor
General from 2011 until June 2016. He has participated
in hundreds of U.S. Supreme Court case s and has argued
dozens of cases before the Court. He is currently a Partner
at Munger, Tolles & Olson.
Next is Professor Richard Pierce, the Lyle T. Alverson
Professor of Law at George Washington University. He has
written more than 20 books and 130 articles on adminis-
trative law and regulatory government.
Finally, Professor Jody Freeman, the Archibald Cox Pro-
fessor of Law at Har vard Law School. She has served as
the White House counselor for energy and climate change,
and has written extensively in the elds of administrative
and environmental law. Together, Professors Pierce and
Freeman are two of the three most-cited administrative law
professors in the country.
I’ll open by asking Mr. Verrilli a question: You argued
both 1 (the Obamacare ca se) and
2 (the second greenhouse gas regulation
case) in the Supreme Court. Even though in
3 the Supreme Court
read the Clean Air Act’s (CAA’s)4 statutory denition of
the term “air pollutant” broadly, in
, the Supreme Court read the statutory term “any
1. , 135 S. Ct. 2480 (2015), began as a lawsuit challenging
U.S. Treasury regulation 26 C.F.R. §1.36B-2(a)(1) (2016), issued under
the Patient Protection and Aordable Care Act. Challengers argued that
the Aordable Care Act allowed for federal tax credits only in states with
state-established health insurance exchanges. e U.S. Supreme Court
disagreed, holding that the Aordable Care Act authorized tax credits for
health insurance purchased from federally established exchanges.
2. In the Tailoring Rule, 75 Fed. Reg. 31514, 31548 (June 3, 2010), the U.S.
Environmental Protection Agency (EPA) interpreted the Clean Air Act
(CAA) to require stationary sources to obtain CAA prevention of signicant
deterioration and Title V permits based on the potential of each source to
emit greenhouse gases. In
, 134 S. Ct. 2427, 2442-44, 44 ELR 20132 (2014), the Supreme
Court held that this interpretation was not required, and went on to nd
that such an interpretation was not reasonable.
37 ELR 20075 (2007) (characterizing the CAA’s denition of “pollutant” as
both a broad one and “sweeping”).
4. 42 U.S.C. §§7401-7671q; ELR S. CAA §§101-618.
air pollutant” more narrowly based on the context of the
particular regu latory program at issue.5
Chief Justice John G. Roberts Jr. stressed this same
contextual approach in , stating that when deciding
whether your language is plain, you must read the words
in their context and with a view to their place in the overall
statutory scheme.6 Do you think that t hese cases signal a n
increase in the importance of context with respect to statu-
tory interpretation?
Donald Verrilli: It’s wonderful to be here. I think the idea
of focusing on the future of administrative law is really crit-
ical, because it’s pretty clear, and I t hink likely to be even
clearer in the upcoming months and years that administra-
tive law is going to be a matter of surpassing importance.
at will be true in the environmental area and elsewhere.
e reason for this is what I’ve come to think of during
my time as Solicitor General and looking at things now as
“the new normal,” which goes something like this: Con-
gress does nothing and, as a result, the executive branch,
feeling pressure to try to address the problems that con-
front the country, looks to existing statutory authority and
tries to nd ways, sometimes through creative readings of
statutory authority, to identify sources of power to dea l
with the serious problems confronting the country.
en, the executive branch acts on that through admin-
istrative action, and then those actions are challenged in
court. So the courts, and ultimately the Supreme Court,
are becoming the arbiters of public policy by deciding
when the executive branch has gone too far and when it
hasn’t, and whether it’s dotted every I and crossed every T
as it’s going through its administrative procedures.
If you think about the past few years, the immigration
case on which the Supreme Court ended up 4-4 last term
was a case like that.7 You can think about the Clean Power
5. , 134 S. Ct. at 2443-44.
6. “But oftentimes the meaning—or ambiguity—of certain words or phrases
may only become evident when placed in context. So when deciding whether
the language is plain, the Court must read the words ‘in their context and
with a view to their place in the overall statutory scheme.’” , 135 S. Ct.
at 2483, quoting Food & Drug Admin. v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 133 (2000).
7. , 136 S. Ct. 2271, 2272, , 137 S. Ct. 285,
196 L. Ed. 2d 206 (2016), concerned the constitutionality of the Deferred
Action for Parents of Americans program. at program, based on an
executive action by President Barack Obama, allowed certain unauthorized
immigrants who were parents of citizens or of lawful permanent residents
to apply for a program that would allow them work permits and to avoid
deportation. Memorandum from Jeh Charles Johnson, Secretary of
the U.S. Department of Homeland Security, to U.S. Immigrations and
Customs Enforcement et al. (Nov. 20, 2014). On Feb. 16, 2015, U.S.
District Judge Andrew S. Hanlen issued a preliminary injunction against
that executive action. Memorandum Opinion and Order, Civil No.
B-14-254 (S.D. Tex. Feb. 16, 2015). A divided U.S. Court of Appeals for
the Fifth Circuit armed the preliminary injunction and ordered the case
to trial. Texas v. United States, 809 F.3d 134, 146 (5th Cir. 2015), as revised
e entirety of the Supreme Court’s opinion in reads
Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
3-2017 NEWS & ANALYSIS 47 ELR 10187
Plan case in the U.S. Court of Appeals for the District of
Columbia (D.C.) Circuit as a case like that.8 You can think
of lots of cases like that, including the cases you mentioned.
In a dierent world, I think the issue that was before the
Supreme Court in would have been xed as a routine
matter in the give-and-take of the legislative process, with
clarifying language added to some appropriations bill or
something. However, because of the kind of gridlock and
conict we have, there wa s no way that wa s going to hap-
pen, therefore, that issue was forced before the court.
Sometimes, it’s going to be issues like that. One cate-
gory of issues is going to be like that where under normal
circumstances, questions of statutory authority would get
worked out through the legislative process and claried,
and there would be no need for t he judiciary to have the
last word on it. Other times, it will be situations where
there is genuine policy gridlock, and the executive branch
is going to make an eort.
at shouldn’t surprise anybody. I’m not advocating
this as a state of aairs. It would be a lot better if Con-
gress actually played the role it’s supposed to play in our
constitutional system. But given that it’s not, it’s unreal-
istic to think t hat an executive branch is going to sit on
its hands rather than t ry to confront the problems of the
country. And I think that’s probably true of an executive
of either party.
As a result, I think the c ases that are going to be t he
most important cases before the Supreme Court, now and
in the upcoming years, are going to be cases that raise fun-
damental administrative law questions like the k ind we’re
going to talk about.
Jody Freeman: at is a perfect segue to the topic of doc-
trines of judicial review and questions about how they will
evolve in the future. ere has been a lot of provocation
about Chevron9 recently, for example. Likewise, what is
known as deference may be in for some changes.10
ere is a lot of talk, as well, about cases like 11 and
Hawkes,12 which raises the question of whether preenforce-
ment review of agency compliance orders will have signi-
cant ripple eects for the agencies. All of these things are in
the mix at the moment—very much alive in the courts and
also of considerable interest to scholars, and I am imagin-
as follows: “e judgment is armed by an equally divided Court.”
, 136 S. Ct. at 2272.
8. e “clean power” case refers to the consolidated set of actions challenging
EPA’s Clean Power Plan rule. Carbon Pollution Emission Guidelines for
Existing Stationary Sources: Electric Utility Generating Units; Final Rule,
80 Fed. Reg. 64661 (Oct. 23, 2015). Challenges to the Clean Power Plan
are currently being considered by the U.S. Court of Appeals for the D.C.
Circuit. West Virginia et al. v. Environmental Prot. Agency, No. 15-
1363 (D.C. Cir. 2015).
9. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 14
ELR 20507 (1984).
interpretation of its own ambiguous regulation is generally entitled to
deference unless “plainly erroneous or inconsistent with the regulation.”
11. Sackett v. Environmental Prot. Agency, 132 S. Ct. 1367, 42 ELR 20064
(2012).
12. U.S. Army Corps of Eng’rs v. Hawkes Co. Inc., 136 S. Ct. 1807, 46 ELR
20102 (2016).
ing of concern to the audience here. I think in the coming
years, as the agencies do precisely what Solicitor General
Verrilli predicted they will do, which is be a productive
source of policymaking in the country, we’ll see a lot of
pressure on these doctrines of deference.
No one has missed that Chevron deference has come in
for some shoddy treatment of late—in cases like , -
, and
.13 Lone judges or justices railing against
Chevron is nothing new. For example, Justice Clarence
omas seems to have declared wa r on Chevron, building
on an earlier opinion he wrote in the
case in which he assailed Chevron deference as an unconsti-
tutional transgression of the separation of powers.14 is is
slightly odd, if only because Justice omas a lso authored
the opinion in , which is perhaps the height of
modern judicial deference.15 ese more recent decisions
suggest that Chevron’s stability and durability may be in for
a greater test. e Supreme Court is either nding ways not
to apply Chevron, or applying it in name only, and granting
very little deference compared to what one might expect.
If we look more broadly, we see attacks aga inst Chevron
everywhere, from individual judges to legislators in Con-
gress. Judge Neil Gorsuch, on the U.S. Court of Appeals
for the Tenth Circuit, issued a recent and striking concur-
rence in the c ase in which he inveighed
against Chevron and its progeny, particularly ,
at great length, reviving an unreconstructed view of the
administrative state and t he separation of powers that
would unwind most of modern administrative law.16 At the
same time, we now routinely see regulatory reform bills
like the Separation of Powers Restoration Act introduced
in Congress, which, if passed, would override both
and Chevron deference in one fell swoop.
Now, one can regard all of this as political noise, and
not take it too seriously. It is surely true that when a part y
doesn’t possess the White House, it isn’t likely to be much
of a fan of Chevron, which allows the executive branch
some exibility to adapt statutes to their policy preroga-
tives. ose same vehement opponents of Chevron will
become its biggest fans if the White House changes hands.
So, you could say that Chevron is being bandied about like
a political football, but it doesn’t matter too much because
deference is here to stay.
But I do think there’s reason to take seriously what the
Chief Justice did in a mere two paragraphs in , which
was to take his d issent in 17—a case that
13. 135 S. Ct. 2699, 2711, 45 ELR 20124 (2015).
14. In , 531 U.S. 457, 487, 31 ELR 20512
(2001), Justice omas, in dissent, argues that the parties failed to address a
“genuine constitutional problem”—the failure of the parties to address the
constitutional grant of “‘[a]ll legislative Powers’ to Congress.”
967, 981 (2005), Justice omas writes that “[a]gency inconsistency is
not a basis for declining to analyze the agen cy’s interp retation under the
Chevron framework.”
16. Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1143-49 (10th Cir. 2016).
17. City of Arlington, Tex. v. Federal Communications Comm’n, 135 S. Ct.
1863, 43 ELR 20112 (2013).
Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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