Lecture
Judging Requires Judgment
Justin Driver | PDF
Articles
Legalistic Noncompliance
Daniel T. Deacon & Leah M. Litman | PDF
Will the executive branch comply with court orders? That question has garnered a considerable amount of attention over the first few months of the second Trump administration. But what does it mean to comply? And what if a form of noncompliance is already occurring?
This Article documents an emerging practice that has dominated the second Trump administration’s approach to unfavorable court rulings, a practice this Article calls legalistic noncompliance. Legalistic noncompliance occurs when the administration uses the language of the law as cover to claim that it is complying with court orders when in fact it is not. Drawing strength from a kind of casuistry, practitioners of legalistic noncompliance deploy an array of specious legal arguments and legalisms in an attempt to conceal what is actually widespread resistance to judicial oversight.
In addition to identifying legalistic noncompliance as an emerging phenomenon, this Article explores its logic and analyzes some of its dangers. This Article suggests that legalistic noncompliance lowers the public salience of noncompliance while, at the same time, signaling to both judges and officials in the executive branch that the administration is not complying with court orders. That dynamic, in turn, could lay the groundwork for outright noncompliance or legalized noncompliance—where courts craft rules that allow judges themselves to say that the administration is complying with court orders when, in reality, the administration is doing little to nothing to carry out a court’s ruling.
This Article does not purport to establish a standard for when courts should reject legalistic noncompliance by calling it out as a form of noncompliance. The politics of the moment, more than anything else, may determine if they do. This Article instead aims to surface the developing practice and explore its costs, which have thus far escaped full consideration.
Presidential Administration After Arthrex
Noah A. Rosenblum & Roderick M. Hills Jr. | PDF
The federal government employs over 2 million civilian workers, all but a few thousand of whom enjoy forms of tenure and insulation from presidential control. This bureaucracy, sometimes called “the administrative state,” is organized in a many-layered structure defined by statutes and regulations. Pursuant to law and court decisions, the administrative state routinely makes findings of fact, policy determinations, and conclusions of law, sometimes independent of the president. The Supreme Court’s recent decision in United States v. Arthrex risks unsettling this arrangement. It adopts a simplistic, hierarchical vision of bureaucratic organization, which is frankly incompatible with existing statutes and regulations.
This Article proceeds on the theory that, nevertheless, the Court did not intend to overthrow the government. It offers alternative readings of Arthrex—narrow and broad—to show how the case undermines the existing law of agency design. It then shows how a middle road could reconcile presidentialism with the Constitution, statutory law, and bureaucracy, enabling the Court to advance presidential administration without abandoning traditional principles of administrative law.
This alternative reads Arthrex through the lens of Myers v. United States and its foundational distinction between politics and administration. The approach should be congenial to presidentialists, for whom Myers remains a touchstone. And it offers a principled way to distinguish cases where the president may exercise control of the bureaucracy to realize policy goals from those where the law may appropriately limit the president to mere supervision in the name of good administration.
We sound a note of caution, however: Without care, Arthrex‘s theory of presidentialism could be far more transformative of the administrative state than many, including perhaps the Justices, are aware.
Essays
Restoring Chevron Deference by Statute
Scott Dodson | PDF
This Essay details a solution for legislatively restoring Chevron deference: amend the APA to direct lower federal courts to give deference to reasonable agency decisions but retain nondeferential judicial review by the U.S. Supreme Court. This solution restores most of the practical benefits of Chevron by giving agencies flexibility to implement congressional policy directives with the expertise they have acquired, by maintaining stability in administrative regulation, and by relieving lower federal courts of the burdens of nondeferential review. And retaining nondeferential judicial review in the Supreme Court will preserve the constitutional role of the judicial branch to say what the law is while supplying a backstop against agency overreach.
Originalism’s Unbalanced Ledger
David Zaring | PDF
This Essay examines the fundamental tension between originalism and cost-benefit analysis—the two dominant methodologies shaping modern, public law decision-making. Originalism, currently triumphant, prioritizes historical meaning and textual fidelity. It operates in stark contrast to cost-benefit analysis, the byword of the administrative state since 1982, which focuses on the future and efficiency. Descriptively, the two methodologies are irreconcilable. Nor is it possible to pair them by claiming they serve different purposes; originalism and cost-benefit analysis conflict when assessing agency design, constitutional rights, and judicial review of administrative action. As regulatory policymaking continues to rely on empirical and economic assessments, originalism’s influence in public law will face increasing pressure to adapt or retreat.