Christopher Walker

At the end of the Term in Trump v. Slaughter, the Supreme Court overruled Humphrey’s Executor—the bedrock precedent that upheld statutory limitations on the President’s removal power over leaders of so-called independent agencies. The formal logic of this unitary executive theory, some have argued, could apply to any other government official who exercises even a sliver of executive power. Indeed, dissenting in Slaughter, Justice Sotomayor argued that the decision could “have major implications for inferior officers and civil-service employees, which the majority studiously ignores.” I remain unconvinced that Slaughter will reach inferior officers like administrative law judges or most of the civil service. That said, Trump v. Slaughter, of course, will not be the final word on the unitary executive. Open questions remain, especially when it comes to inferior officers and others who exercise a significant amount of policymaking authority.

In Deportation in the Deep State, Eric Fish does a terrific job exploring some of these open questions in the context of immigration law. He focuses on what Jennifer Koh calls “shadow removals” (and Shoba Wadhia calls “speedy deportation”). Shadow removals refer to the deportation of noncitizens without review by an immigration judge, much less an Article III federal judge.

The vast majority of deportations today are shadow removals. Professor Fish points out that we have seen a rise, and should see a further rise, of shadow removals as the Trump administration intensifies its immigration enforcement efforts. After all, shadow removals take less time and require fewer resources. Indeed, the Trump administration has attempted to dramatically expand the use of expedited removal—which had been limited to noncitizens within 100 miles of the U.S. border—to cover any noncitizen located anywhere in the country who entered without valid entry documents and cannot prove continuous presence in the United States for at least two years.

Deportation in the Deep State does not seek to assess the legality of this attempted expansion of expedited removal; pending litigation will test that. Instead, Professor Fish focuses on the appointment and removal issues implicated by the government officials who carry out these shadow removals. As Part I of the article nicely details, these immigration officers are not appointed by an agency head or the President, much less confirmed by the Senate. Yet their expedited removal decisions, by statute, are insulated from review by the agency head and the President, with their decisions reviewed and approved only by a supervisor who is also not appointed by the agency head or the President. These line-level immigration officers and their supervisors, moreover, enjoy the tenure protections generally afforded to civil servants.

In other words, no agency-head review, no judicial review, and no at will removal. (To be sure, there are some nuances detailed in Part I that I will elide for present purposes. For instance, if the line-level immigration officer determines the noncitizen has a significant possibility of establishing eligibility for asylum, the case is then sent to immigration court—an agency adjudicative system that is far less problematic under the Supreme Court’s current unitary executive framework.)

With these basic facts, it is easy to see how this would be an excellent final exam question in administrative law. Part II applies these constitutional principles in a workmanlike manner. Professor Fish concludes that it is constitutionally problematic that there is no agency-head review of these immigration officers’ decisions—that under United States v. Arthrex, without agency-head review these officers are principal officers who need to be appointed by the President and confirmed by the Senate (and, after Slaughter, surely need to be removable at will by the President). That has to be right, at least with respect to the supervising officers who review and sign off on the line-level immigration officers’ decisions. (To be sure, some scholars, such as my colleagues Becky Eisenberg and Nina Mendelson, argue that agency-head review is not and should not be required under Arthrex; at will removal may be a  sufficient substitute for inferior-officer status.) The way to remedy this separation-of-powers issue is to vest final decisionmaking authority in the agency head, which Professor Fish observes is practically challenging due to the volume, expedited decisionmaking timeline, and other aspects of the shadow removal process.

Even if agency-head review were available, Professor Fish further argues that these immigration officers are at least inferior officers who must be—and presently are not—appointed by the agency head or the President (or a court of law, I guess). That has to be right as well, again at least with respect to the supervising officers but maybe also the line-level officers as they seem quite analogous to line-level agency adjudicators like administrative law judges and immigration judges who are likewise inferior officers. Then, of course, there is a question of the constitutional requirement of at-will removal after Slaughter. As noted at the outset, I do not think Slaughter stretches that far, but Justice Sotomayor is not so sure.

If all of this is true—or at least arguable—why haven’t we seen courts striking down these officers as violating the separation of powers? Part III provides the answer: it turns out that Congress has made it very, very hard for noncitizens to challenge shadow removals in court. Professor Fish canvases all options and ultimately concludes that the most promising avenue for judicial review would be in a collateral challenge in an illegal reentry prosecution. And even in that context, he argues, “the only consequence of a successful collateral challenge would be a defense victory in a criminal case.”

Professor Fish concludes by zooming out to the “two-faced adjudicative state”—as Emily Chertoff and Jessica Bulman-Pozen have coined it—that distinguishes rulemaking and adjudicative agencies from enforcement agencies. The former are where the constitutional controversies have focused, Professors Chertoff and Bulman-Pozen argue, while the latter have been largely unconstrained by constitutional law. Professor Fish adapts this “two-faced adjudicative state” to underscore that even some agency adjudication happens in a lawless institutional context too. Immigration adjudication escapes the Roberts Court’s unitary executive turn largely because Congress has insulated shadow removals from judicial review. I would not be surprised to see constitutional challenges to shadow removals make their way to court, in no small part due to Professor Fish’s article.

Zooming further out, shadow removals are just one example of what I have tried to capture as bureaucracy beyond judicial review. Agency actions that may never make it to court are arguably more constitutionally suspect under the Roberts Court’s unitary executive turn, as those same actions are often also not subject to agency-head review and made by government officials who enjoy some measure of tenure protection. Government officials with broad enforcement powers, for example, strike me as ripe for similar constitutional scrutiny.

It will be fascinating to see how the unitary executive further develops in a post-Slaughter world. Deportation in the Deep State provides a provocative view of that future.

The post The Unitary Executive at the Border (and Beyond) appeared first on Administrative Law.

Jodi Short

Chad Squitieri’s Congress in the Mouth of a Lawyer is one of the most generative articles I have read this year. His observation that legislation is a multi-branch affair is, at once, trivially obvious and radically unsettling. Centering this observation is an important corrective to the conceptual slippages that result from lawyers’ tendency to speak of “Congress” as the branch that makes law and to speak of legislation as the constitutional prerogative of a single branch—“Congress.” Of course, it is well known that Congress cannot make law alone but must do so in concert with the President. “What follows from that fact of constitutional structure is that, when one speaks of ‘Congress’ as making law, one should be understood as necessarily (albeit implicitly) speaking of the House, Senate, and President working in concert.” (P. 4.) Squitieri refers to this as the “multi-branch definition of ‘Congress.’” (P. 4.)

Squitieri makes structural arguments in support of his multi-branch conception of lawmaking, pointing not only to the presentment requirement in Article I, Section 7, but to the Recommendation Clause and the role of the Vice President in the Senate, which give the President additional means of influencing the lawmaking process. The Recommendation Clause authorizes—arguably commands—the President to participate in the legislative process proactively, stating that the President “shall … recommend to [Congress’s] Consideration such Measures as he shall judge necessary and expedient.” (P. 25.) The Vice President’s tie-breaking vote in the Senate provides a tangible means through which the President can participate in the lawmaking process, and Vice Presidents have not been afraid to use it to advance the agenda of the presidential administration they serve. Squitieri discusses the practical leverage that these mechanisms give to the President in the legislative process.

Squitieri also argues that his multi-branch conception of U.S. lawmaking is consistent with Diceyan understandings of the English Parliament, which “means, in the mouth of a lawyer … the King, the House of Lords, and the House of Commons.” (P. 5.) This precise definition of how the supreme law of the land is made encodes broader principles of legal sovereignty and the rule of law. Specifically, it requires that supreme law be enacted through the concerted action of the elected branches pursuant to a Constitution that embodies the will of the People, and it and suggests that courts acting as faithful agents of the People must account for the multi-branch lawmaking process established by the Constitution.

Squitieri discusses several interrelated pay-offs that his multi-branch conception of lawmaking has for statutory interpretation. First, he contends that a proper understanding of legal sovereignty requires a rejection of the idea that courts serve as faithful agents of Congress. Rather, it implies that courts are agents of the legal sovereign—the sovereign will expressed by the People in the Constitution. Second, he argues that this appropriate conception of faithful agency demands that statutory interpreters distinguish between legislative intent and congressional intent, and that interpreters relying on legislative history give weight to presidential as well as congressional evidence.

Third, he argues that the major questions doctrine is inconsistent with a conception of courts as faithful agents of the People—rather than faithful agents of the House and Senate. A faithful agent of the People interpreting a statute enacted through a multi-branch process should do so without favoring either of the two political branches. The multi-branch framing of legislation undermines the claim that the major questions doctrine reflects a “practical understanding of legislative intent,” because it omits presidential intent altogether.

Finally, Squitieri offers a post-Loper Bright theory of respect for executive branch statutory interpretations that does not depend on agency expertise or political accountability. He argues that recognizing the President’s formal role in legislation suggests that courts should respect agency interpretations to the extent that they reflect the historical lawmaking views of a multi-branch “Congress” that includes the President.

Squitieri stops there, but I could not stop myself from spinning out further implications of his multi-branch conception of Congress. There are no doubt critiques to be made of these claims, but what I like (lots) about them is that they prompt new ways of thinking about an important complex of issues in administrative and structural constitutional law.

Squitieri’s multi-branch conception of Congress centers the fact that the Constitution allocates overlapping powers to the political branches, and his interpretive approach provides a methodology for identifying areas of shared power—a high-stakes endeavor in the wake of Trump v. U.S. Indeed, Squitieri identifies shared power in a core constitutional domain—legislating—that would seem to be clearly delegated to only one branch: “All legislative Powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and a House of Representatives.” (Art. I, Sec. 1.)

This multi-branch concept also teases out provocative questions about which Article II powers might, in fact, be shared with Congress rather than truly “conclusive and preclusive.”  For instance, how does a multi-branch conception of legislative power inform understandings of the president’s removal power? Presidents have signed into law various restrictions on the President’s authority to remove executive branch officials based on a lawmaking process conducted in concert with the House and the Senate. That process reflects the collective intent of the multi-branch lawmaker about the scope of statutory delegations, the scope of presidential authority over statutorily created offices, and the appropriate balance between them. Yet, the Court’s removal jurisprudence pits a single-branch Congress against the President to strike down these multi-branch legislative efforts.

Once we start to go looking for shared powers, the very notion of “conclusive and preclusive” constitutional authority seems open to serious contestation. After all, not only does the Constitution explicitly delegate to the President a role in legislation; it explicitly delegates to Congress a role in law “Execution.” (Art. I, Sec. 8, Cl. 18.)

The post Taking Shared Powers Seriously appeared first on Administrative Law.

Haiyun Damon-Feng, Agency Fact-Making, 135 Yale L. J. 2525 (2026).

Wendy Wagner

In Gundy, Justice Gorsuch reminds us that one of the traditional roles of the agency is “filling up details and finding facts.” (Dissent, P. 33.) Indeed, “fact-finding” appears in the title of at least eighty law review articles on agencies and in the text of several thousands more.

However, in Agency Fact-Making, Damon-Feng shows how this simplistic characterization of agency work as fact-finding misses most of the action; the agencies are not simply out there finding facts and reporting back but are producing (or “making”) the authoritative knowledge that comes to count as fact. Those agency-produced facts guide countless decisions about governance, public policy, and daily life.

But if agencies really are making—not finding—the public facts on which so much of the nation depends, administrative law should have a well-developed account of how that function operates and how it ought to be structured, right? Nope.

Damon-Feng exposes how badly we have neglected this function of the administrative state, and she begins the important work of giving it conceptual clarity. Specifically, she maps the many forms that agency fact-making takes, provides an initial framework for understanding it as a distinct administrative function, and spotlights the institutional challenges it creates for democratic governance. Perhaps we have been deluding ourselves into believing that this fact-making is a simple, mechanical process. Or perhaps the role of agencies as fact-makers has become a more visible battlefield for partisan politics in recent years. Whatever the explanation, Damon-Feng makes one thing unmistakably clear: agency fact-making is “central—not peripheral” to what the so-called Fourth Branch does. (P. 2565.) And that conceptual move alone forces administrative law scholars to confront a new set of questions about institutional design, democratic accountability, and the conditions under which agency facts can be trusted.

After a brief orientation, readers of Agency Fact-Making are whisked off on a whirlwind tour of multiple examples of how and where agencies make facts. Agencies count us through the census in ways that determine political representation and the allocation of billions in federal funds. Agencies track unemployment, inflation, and wages through the Bureau of Labor Statistics, shaping markets and monetary policy. Agencies generate and interpret public-health guidance, from whether to mask during COVID-19 to how vaccines should be distributed through agencies like the CDC.  Indeed, reading this first part feels like the lights have suddenly been turned on in a sprawling, dark warehouse stocked with a wide array of agency fact-making activity that has received only sporadic, limited attention over the last two-hundred years.

Yet in introducing the reader to these many rich examples, Damon-Feng also details ways that this fact-making operate in ways that goes well beyond providing a neutral, technocratic service.  The agencies encounter difficult decisions about what to measure, how to measure it, what to prioritize, and how to disseminate results that are frequently invisible to the public.  Moreover, many of these quality-control processes and methodological choices are often difficult to observe or evaluate from the outside. Resulting opacity on these key junctures raises multiple potential points of concern for administrative law scholars, among them whether knowledge production is being distributed democratically across populations and whether the information itself is trustworthy and “rooted in truth-seeking processes.” (P. 2533.)

Damon-Feng then dedicates a substantial middle part of the article to bring home how crucial this fact-making is to the law, since it provides the means by which agencies wield power. One begins to truly appreciate, for example, how malleable the underlying choices are in the census, yet they serve as inputs for critical decisions regarding the allocation of power and resources within the country. Agency fact-making is similarly central to regulatory authority.  Agencies such as EPA build factual records through a series of methodological choices that shape consequential policy decisions. Those agency-produced factual determinations generally receive distinctive legal weight in later administrative and judicial proceedings. Agency fact-making can also operate upstream of policymaking in ways that inform how people understand the world.  Damon-Feng notes, as one of many examples, how the recent National Park Service website rewrites of marginalized groups’ histories shape public memory in ways that are poised to have lasting impacts.

The final part of Agency Fact-Making then turns to some of the implications that follow from this broader view of the agencies’ epistemic functions. Damon-Feng’s primary concern in this part is to explore whether our current institutional and constitutional design permits a dangerous centralization of knowledge-producing authority. She argues, “the arguments about accountability and presidential control look different once we expand our understanding of agency activity to include fact-making.” (P. 2531.) Recent developments, including executive interventions in agency funding, staffing, expert advisory groups, and research priorities makes her claims still more urgent.

Damon-Feng does not purport to resolve these institutional design challenges, but she begins the essential work of spotlighting and framing them. While there has been a great deal of attention to the “politicized use” of facts, Damon-Feng digs deeper to expose how it is really the “politicization of fact-making” itself that deserves our attention.  (P. 2534.) She highlights how the line between political oversight and fact-making can blur the two in ways that diminish the independence of agency experts, skew the allocation of resources toward some forms of fact-making over others, and shape our collective understanding of the world, such as the historical record of inequality and discrimination. And, still more worrisome, without reliable guardrails or transparency on fact-making, agency fact-making becomes vulnerable to manipulation, allowing a few private or public actors to subtly shape the information on which the nation relies.

In tracing out some of the areas of greatest institutional concern, Damon-Feng rightly focuses on the intersection of presidential control and agency fact-making.  Her framework, however, naturally raises equivalent worries about Congress’s and the courts’ roles in structuring and overseeing agency fact-making. Those other two constitutional branches also shape what agencies study, the procedures they use, and the authority agency-produced facts ultimately receives. Understanding agency fact-making may therefore ultimately require locating it within the larger constitutional system.

Wherever Agency Fact-Making leads readers—and I am confident it will generate many productive lines of inquiry—Damon-Feng has accomplished something important. If administrative law is, in part, about structuring the institutions that govern us, it must also grapple with the ways it shapes what we know. On that front, Damon-Feng’s article provides an essential starting point.

The post The State as Fact-Maker: The Fourth Function of the Fourth Branch appeared first on Administrative Law.

Nicholas Parrillo

The election of Donald Trump to a second term has brought to power a political coalition that is alienated from—and distrustful of—the federal bureaucracy, by which I mean career officials in federal agencies (a.k.a., civil servants). The second Trump Administration has been carrying out a historic campaign to remove civil servants from their posts and to disempower those who remain. In this context, Nicholas Bednar’s excellent article, Presidential Control of the Civil Service, is essential reading.

Bednar’s analysis of the civil service goes against two familiar narratives. The first is that career officials are so entrenched that nobody can effectively defy them—a view that seems less plausible than it once did, in light of the second Trump Administration’s apparent impact. That impact may trigger a reflex in many of us to interpret current events in terms of a second familiar narrative: the Roberts Court’s embrace of unitary executive theory, allowing the President to assert greater vertical control over agency officials, notwithstanding statutory constraints to the contrary. To Bednar, both narratives are inadequate. He proposes a third. The civil service has never been terribly entrenched (at least not as a legal matter) because Congress has long delegated broad power to the President to shape the career officialdom. If a President distrusts the civil service and seeks to tame it, this can be done—and it can be done primarily through the President’s statutory powers. The constitutional theory of the unitary executive isn’t much needed for the task.

Bednar makes this assessment based on his close study of the civil service’s statutory architecture and related case law. The scholarly field of administrative law has until now paid relatively little attention to statutes and cases on federal career personnel law (compared with political appointees). Bednar makes a strong case for elevating career personnel law as an object of study within the field. “Modern debates,” he notes, “often center questions of policy control” while subordinating “discussions of administrative capacity.” (P. 2139.) To be sure, scholars have done much to investigate how “procedural design,” such as the notice-and-comment process, “shapes the substantive policy outcomes produced by the law.” (P. 2140.) But substantive policy outcomes also depend, to a large degree, on career personnel law, in that such law influences (a) which people, with what normative priors, self-select into career jobs to begin with, (b) whether and to what degree such people invest in various forms of competence at implementing the agency’s substantive legislation, and (c) what incentives those people have to act on that competence, as distinct from the values of the President and the President’s coalition. The identities, investments, competencies, and incentives of the career officials are key to how the substantive legislation will be implemented, which means they are key background assumptions on which Congress operates when enacting such legislation in the first place. “In some cases,” writes Bednar, “Congress might well have drafted a different statute—or declined to legislate altogether—had it anticipated an agency workforce guided by different normative commitments” than lawmakers assumed. (P. 2143.)

Yet despite the importance of career personnel law to the efficacy of substantive legislation, Congress has not been very prescriptive or specific in writing career personnel law. Legislation governing the civil service is shot through with broad delegations. And these delegations are not only to substance-focused agencies or to personnel agencies (like the Office of Personnel Management) but especially to the President, expressly. Historically, Congress has often operated on the understanding that the President can be trusted to promote the development of administrative capacity to implement substantive statutes effectively. But as Bednar points out, there is reason to doubt this understanding. Presidents are mainly interested in shaping substantive policy outcomes, and there are ways of using personnel law to do that in the short term that are detrimental to capacity-building in the long term; yet the long-term diminishment of capacity often has no electoral consequences for those who cause it. Bednar provides an original and eye-opening survey—encompassing the current Administration’s historic efforts but stretching back for most of a century—of how presidents have taken advantage of their delegated career-personnel-law powers on a range of issues, including merit hiring carveouts, reductions in force (RIFs), unionization rights (drawing on the important work of Nicholas Handler, who also works in career personnel law), buyouts, freezes, and more. Bednar shows how broad statutory delegations on such matters have empowered presidents and rendered courts unlikely to intervene, since the statutory criteria for exercising the delegated powers are vague, and the legislature’s frequent choice of the President as delegee renders inapplicable the Administrative Procedure Act’s bar against arbitrary use of discretion.

Bednar’s research on how the White House can use delegated power to diminish the career officialdom positions him to identify the potential statutory changes that would be most effective in putting the civil service on a surer legal footing if a future Congress wished to do that. The main thing is to replace subjective criteria with objective ones, as the latter are more practically enforceable by various means, including litigation. Thus, Congress could abolish the power to create exceptions to the competitive service (or limit the power to named agencies), numerically cap the number of positions that can be covered by the undefined “policy-influencing” exception, replace the presidential power to bar unionization on undefined “national security” grounds with a statutory list of named agencies so barred, empower the Merits Systems Protection Board to stay adverse personnel actions pending review (to prevent the current dynamic in which fired employees never pursue claims because of economic pressure to move on), and condition appropriations on minimum staffing levels. To be sure, as Bednar acknowledges, these changes would all be costly, as they would reduce flexibility that could be used to improve management. But Bednar argues that protection of administrative capacity justifies the costs, not least because the destruction of such capacity is otherwise so easy and (once it has happened) so onerous to reverse. “Building an expert workforce with sufficient experience and institutional memory takes years,” he says, “whereas dismantling it can occur in a matter of months.” (P. 2145.)

The post The Administrative Law of the Civil Service appeared first on Administrative Law.

Fred Jacob

Working with Statutes is a love letter to administrative agencies, and, if I may be so bold, to those of us who have been privileged to serve as their custodians.

Anya Bernstein and Cristina Rodriguez make a case for agency legitimacy rooted in loyalty, care, and – in my reading of their fine piece – affection. In contrast to the stereotype of the clockwatching bureaucrat, Bernstein and Rodriguez explain how agency staffers enthusiastically take on the mantle of caretaker, acting zealously to bring their law to bear on problems that fall under the congressional mandate. In this way – through the people who care for it – Congress ensures that a legislative program committed to an administrative agency remains efficacious across time and societal change.

Rejecting an approach that evaluates agency action through prisms of judicial review or legislative drafting, Bernstein and Rodriguez conduct a series of thirty-nine interviews with political and career appointees at eleven federal agencies to better understand agency authority from the inside out. From their extensive interviews, Bernstein and Rodriguez posit that agency superintendents’ commitment to a healthy statute is grounded in twin duties of loyalty and care to their administrative regimes. The duty of loyalty emanates from the agencies’ organic statutory text and the mission that flows from that text. The two are symbiotic: statutory language informs mission, and mission informs statutory construction. In this way, agency personnel distill their statutes to an “overarching set of values and objectives served by the regulatory regimes.” (P. 937.) These values allow agencies to identify problems that enter their statutes’ orbit and are appropriate for their administrative machinery to resolve through regulatory means.

If you’re loyal to a statute and committed to its mission as Congress intended, you’re going to approach potential solutions to problems arising under that law with care. And that’s the second duty Bernstein and Rodriguez identify: the duty of care. (You don’t break something you love.) In this way, “[a]gencies seek practicable paths to implement statutes in an admittedly provisional way, subject to adjustment down the line” and “ensure that their policy plans address[] lived experience, changing circumstances, and the goals and needs of the regulated public.” (P. 953.) Administering a statute carefully requires attention to democratic principles, an overriding concern identified by Bernstein and Rodriguez’s interviewees. So, in making policy, agency caretakers seek (and attempt to incorporate) input from Presidential leadership, public stakeholders, and Members of Congress and their expert staff. And they consider the federal courts, as they analyze the judiciary’s take on their statutes and evaluate litigation risk in policymaking. This is dynamic work that advances our democratic project. The loyalty and care demonstrated by committed public servants ballasts the administrative system and justifies respecting agency action as reflective of the polity’s priorities.

Congress presumably does not intend for its laws to be moribund; duties of loyalty and care propel robust agency action that advances legislative mandates over the shifting sands of time. As Bernstein and Rodriguez show, the allocation of primary responsibility to agency personnel to protect statutory relevance reflects the system Congress wanted. Agencies did not delegate power to themselves; rather, “delegation to agencies embodies the choice of the legislature itself.” Indeed, by the New Deal, Congress was no stranger to how agencies work. Especially after the enactment of the Pendleton Act of 1883 that established a merit-based civil service, Congress well understood that the people who execute a statute are the ones who “make it real,” as one of the paper’s interviewees commented. (P. 952.) It is no accident that the Constitution requires every federal employee to take an oath in which they promise to “faithfully discharge the duties of the office on which [they are] about to enter.” Statutory caretakers would violate their oath if they failed Bernstein and Rodriguez’s duties of loyalty and care.

I must confess that I am biased. For almost my entire 30-plus-year legal career, culminating in my current position as Solicitor of the National Labor Relations Board (although I write this in my personal capacity), I have been one of the agency caretakers Working with Statutes describes. As one who has taken that oath several times, I can attest that it is not merely performative. Reciting it aloud with your right hand in the air carries gravity, a commitment to yourself and all within earshot that you have accepted a solemn obligation to do your job meaningfully.

Working with Statutes reflects my lived experience as a caretaker of a venerable New Deal statute. And I see my dedicated colleagues in its pages. The laws we administer become mini-constitutions in themselves. Like a constitution, we owe the statutes Congress has entrusted us to administer faithful allegiance. That means that we strive to fulfill our commitment to keep the laws for which we are responsible vibrant and tangible in the face of new American realities. By urging an agency-centric view of administrative action, Working with Statutes encourages courts, academics, and the public to value civil servants’ dedication to statute and their respect for the rule of law as core to good government.

The views expressed in this post are solely those of the author and not those of the National Labor Relations Board or the United States Government.

The post Administrative Agencies & the People who Love Them appeared first on Administrative Law.

Emily Hammond

In Second-class Administrative Law, Professor Matthew Lawrence makes a provocative challenge to the presumption of unreviewability announced in Lincoln v. Vigil, 508 U.S. 182 (1993), which applies to agencies’ decisions about how to allocate lump-sum appropriations. Challenging both the opinion’s premise and its potential theoretical bases, Lawrence offers an important rethinking of the doctrine. What really stands out about this piece, however, is that Lawrence melds traditional methods of administrative law scholarship with a human-focused dimension, exploring how it impacts people as applied. And he demonstrates why this seemingly neutral rule of administrative law has a disparate impact on historically marginalized groups, especially Tribes and imprisoned people. In so doing, he answers a broader call to bring a critical lens to administrative law and offers a model for how it can be done.

Some readers might wonder if the Vigil slice of administrative law is worth the fuss. But as Lawrence notes, about a fifth of the federal budget is theoretically shielded by Vigil as non-defense, discretionary spending. (P. 1067.) And, as exemplified by the Fall 2025 shutdown impacting SNAP benefits,¹ it bears noting that many of the kinds of programs funded this way are those that offer safety nets to those with the least power and most vulnerability. Indeed, Lawrence’s treatment is rich with the separation-of-powers and human-impact dimensions that are of extraordinary importance in the United States today.

As a refresher: the Vigil plaintiffs were Tribal members who had relied on the Indian Children’s Program for medical care; the Executive Branch abruptly ended the program with no notice in 1985, apparently taking even the Bureau of Indian Affairs by surprise. The Supreme Court held that the plaintiffs’ claim was presumptively unreviewable under § 701(a)(2) of the APA, not on a textual basis of “no law to apply” but instead on the reasoning that this was a longstanding legal “tradition.” Yet as Lawrence points out, the Court cited no authority for that proposition, and without grappling with authority to the contrary. Lawrence takes the reader on a deep dive into the Vigil opinion, its oral arguments and briefs, and the legal commentary that might have been relevant to the matter at the time. As he later explains, there is plenty to work with should courts or policymakers conclude that it’s time for Vigil’s demise.

To highlight the human implications of the doctrine, Lawrence considers its impact from a subordination perspective (honoring the work of feminist and critical race scholars), evaluating both documented decisions applying Vigil and the scope of agency decisions that are insulated from review. The documented decisions offer a stark perspective (Lawrence takes care to acknowledge the limits of this part of his investigation): almost two-thirds of all the cases applying Vigil to defeat review were brought by Tribes or prisoners, and no industry plaintiffs were barred when Vigil came up in their cases. (P. 1065.) Zooming out to the agency level, Lawrence’s review of the scope of insulated agency spending decisions paints a more comprehensive picture. Programs funded through lump-sum appropriations include: “the Indian Health Service, housing assistance for people in poverty, veterans’ health benefits, CDC and NIH public health grants, USDA farm subsidies, the Bureau of Prisons, US AID, WIC,” and several others, including funding to schools to support disabled and low-income students. (P. 1068.)

Readers following the Trump Administration’s activities will recognize many of the categories in this list, and indeed, Lawrence situates his separation-of-powers analysis within the legal scholarship (for example, here and here) that has identified appropriations and spending as an important policy tool. As he describes, at the margins, Vigil diminishes Congress’s power to control policy through the power of the purse, and may seem to countenance illegality or corruption. Lawrence admits that because these appropriations are annual, Congress may, in fact, have a firmer hand in control, with less accompanying need for judicial review. Still, he argues that Vigil is overly broad. In application, judges have considerable discretion whether to apply Vigil, and the doctrine suffers from a lack of clarity on what kinds of appropriations and spending are within its reach, and whether other sources of law might provide the basis for review (for example, the agency’s authorizing statute). These attributes further present a risk of disparate impact.

Ultimately, Lawrence’s thoughtful article reminds us of two things: In the urgency of contemporary times, even administrative law’s old(ish) presumptions bear careful reconsideration; and the human dimension of administrative law deserves fulsome treatment.

The post Putting a Human Face on Administrative Law appeared first on Administrative Law.

Jack Beermann

Non-statutory review, ultra vires review, and Leedom v. Kyne, the leading case on non-statutory review, all have one thing in common—when I come across them, my eyes glaze over, and I pretend it never happened, hoping they will all go away. It’s like an allergic reaction. I’ve avoided talking about them, writing about them, and covering them in my Administrative Law course like the plague. Leave it to Richard (“Chip”) Murphy, famous for his entertaining and informative annual reviews of administrative law developments for the American Bar Association, to produce an article that makes them accessible, worth covering, and, almost, enjoyable to read about. Murphy’s article, Ultra Vires Review of Federal Agency Action Made Simple(r), does just that.

Statutory review, as the term implies, is judicial review of agency action under the APA or another statute providing for judicial review. Non-statutory ultra vires review is conventionally understood to provide a narrow method for seeking to enjoin agency action taken beyond the agency’s statutory authority that may not meet the finality requirement applicable to actions by the particular agency. The availability of ultra vires review is based on the Supreme Court’s 1958 decision in Leedom v. Kyne, an NLRB case the Court characterized as “one to strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition in the Act.”¹ Under current law, as the Fourth Circuit has explained, ultra vires review is “appropriate only where there is a ‘strong and clear demonstration that a clear, specific and mandatory [statutory provision] has been violated.’”² In his characteristically colorful style, Professor Murphy explains that under this view, ultra vires claims “can override finality requirements, but only for the most spectacular statutory violations.” (P. 1206.)

The problem that Murphy confronts is the same one that has made me allergic to even thinking about ultra vires review before now: the doctrine governing the availability of ultra vires review is a mess, with some courts viewing it as a readily available alternative to APA review and others confining it to the rare case of extreme statutory violations. And then there’s the issue of whether the APA’s restrictions on the availability and timing of judicial review apply in ultra vires case, with courts all over the place on that one. What’s a scholar to do?

Based on a meticulous and engaging review of the origins and applications of ultra vires review in and since Leedom v. Kyne, Murphy concludes that much of modern doctrine is based on a misunderstanding of Leedom as authorizing review of non-final agency action whenever a colorable claim can be made that an agency’s actions are plainly legally unauthorized. He points out, correctly in my view, that the action in Leedom, Board certification of a bargaining unit, was “obviously ‘final’ in the sense of that term used by general administrative law” but was not a final, reviewable action under the special statutory review scheme that applies to orders of the NLRB. (P. 1234.) Rather than authorizing review of nonfinal agency action, Murphy views the proper scope of ultra vires review as an avenue for enjoining unlawful agency action that would be unreviewable under the particular agency’s statutory review mechanism. He rejects both the limit of non-statutory review to “egregiously severe error” and the idea that ultra vires review is available for non-final agency action in the administrative law sense.

Murphy proposes to simplify ultra vires review by “reintegrating” it with review under the APA so that it works “like APA review did back in 1946.” (P. 1206.) This would involve two changes to current doctrine. First, ultra vires review would be available only for agency action that meets the APA’s finality requirement. Second, ultra vires review would not be confined to cases of spectacular or extreme error except when “necessary to escape the force of implied preclusion that might otherwise block an ultra vires claim.” (P. 1241.)

Murphy recognizes that confining ultra vires review to final agency action might appear to shield some unlawful agency action from effective review. His answer, with nuance that cannot be captured in this format, is to focus on the Supreme Court’s recognition that APA finality should be applied pragmatically, allowing review of agency actions that have immediate consequences that might not be remediable if review were postponed. (Pp. 1235-36.) APA finality, like many legal doctrines, leaves courts sufficient wiggle room to resolve problematic cases without sacrificing the coherence that Murphy would restore to the law of ultra vires review.

Professor Murphy’s article is enlightening, readable, sensible, and useful to anyone interested in judicial review procedure. Thank you, Chip, for making ultra vires review hypo-allergenic.

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Daniel Walters

When the newly minted Department of Government Efficiency (DOGE) captured headlines in the early part of the new Trump administration for, in Elon Musk’s words, feeding federal programs into the wood chipper, outrage erupted. And it is not hard to see why. Here was a “special government employee” heading a shadowy new office that was apparently burning the midnight oil to make consequential, unilateral decisions about appropriated federal dollars. Concerns began to emerge that Musk was unconstitutionally appointed, but the concerns ultimately did not go anywhere before DOGE apparently disappeared. Part of the reason for that tepid legal response can be chalked up to the Trump administration’s ace in the hole. DOGE didn’t have any actual authority to feed programs into the wood chipper; it needed some other entity with actual authority to rubber-stamp its work. And rubber-stamping of this sort is pervasive.

In a new article, Adam Samaha gives us a helpful framework for thinking about not only DOGE, but also countless other arrangements in modern government where one actor apparently approves, without any serious independent thought or judgment, the work of another actor. Although many of the examples Samaha uses to illustrate rubber-stamping dynamics come to us from administrative law, rubber stamps can be found almost anywhere institutional decisions are made.

Part of the contribution here is conceptual, for rubber stamps sometimes resemble other familiar “decision structures” in government that are nonetheless formally distinguishable. Samaha distinguishes between “actual power”—i.e., doing the work and deciding—and “formal authority”—i.e., signing off—to create an array of such decision structures. Most important for administrative law, rubber stamps are in some sense like “delegated judgments,” in that they move actual power from one actor to another (e.g., from courts to agencies under Chevron), but they are also critically different, in that they do not move formal authority in tandem with power. Rubber stamps are unique creatures in this division of power and authority. But much of the payoff of the article stems from the fact that the boundaries blur, and that real-world decision structures often could plausibly be characterized as delegated judgments or rubber stamps, and indeed, colloquial use of the idea of delegation may sweep in many rubber stamps. Much depends on the level of “thoughtlessness” in review by those who retain formal authority over those with actual power.

As Samaha acknowledges, rubber stamps often strike observers viscerally as problematic arrangements designed to evade accountability or responsibility by obfuscation—hence the outrage at DOGE, as well as in complaints about President Biden’s alleged abuse of an “autopen.” Yet Samaha also convincingly explains the ubiquity of rubber stamps in government and offers reasons why the law rarely limits them. Samaha’s incredibly diverse collection of examples and his deeply insightful, balanced discussion leave the reader with the inescapable takeaway that rubber stamps are normatively ambiguous.

The better, more nuanced way to think about rubber stamps is in terms of economic tradeoffs. Samaha explains that all decision structures impose decision costs and affect decision quality. At least in the abstract, it is not clear that rubber stamps stack up well against the alternative decision-making structures in most situations. Rubber stamps, on average, seem to impose unnecessary decision costs, since both “delegated judgment” and “independent judgment” cut out steps by uniting power and authority in one actor. If they are rote, rubber stamps are unlikely to add much to decision quality relative to these other options; if not rote (i.e., when some degree of review is possible), they only increase unnecessary decision costs by making each step more involved. Moreover, it is true that rubber stamps impose a kind of cost on observers through their inherent lack of transparency (one never knows exactly what went through the mind of the rubber stamper, if anything), even if complaints about non-transparency often mask simple disagreements with the merits of decisions.

Yet, despite these frequent built-in inefficiencies, Samaha sees virtues in rubber stamps under certain conditions. Rubber stamps often appear to be the predictable result of institutional constraints—specifically, those with formal authority may be inundated with decisions and “information firehoses” without possessing “resources and willingness to exercise that authority personally across its full range.” Rubber stamps could also be entirely rational ways for those with formal authority to organize oversight of relatively low-priority decisions. We could often eliminate rubber stamps by simply giving those with formal authority more resources to bring the work of decision-making in-house. But the realities of modern government often take this option off the table, leaving more of a legitimate domain for rubber-stamping arrangements.

If not quite a love letter, Samaha’s account of rubber stamps understands them to be practical responses to institutional constraints—often more laudable, or at least tolerable, the more time we spend with them. Samaha suggests that this is why the law has so rarely attempted to restrict rubber-stamping, at least to date. Courts and lawmakers have perhaps understood implicitly that they lack the tools to develop a general law of rubber stamps, and have wisely rubber-stamped whatever rubber stamps bubble up as a matter of institutional necessity and experience.

It is possible that this will change. Not only are there rumblings of discontent with certain uses of rubber stamps, as in the DOGE case, but Samaha also reminds us that there are echoes of an anti-rubber-stamp view of accountability in some of the Supreme Court’s executive power caselaw. At times, the Supreme Court has tacitly approved of rubber-stamping as a formal solution to structural unconstitutionality—as it did when it turned the other way as Securities and Exchange Commission officials ratified past administrative law judge holdings in the wake of Lucia v. SEC. But if it is true, as the Court said in United States v. Arthrex, Inc., that the President cannot delegate “the obligation to supervise,” then it may be difficult to square rubber stamps of agency decision-making with the Constitution. Put differently, the unitary executive theory would not be so unitary if it permitted the separation of power and authority.

Moreover, the workaday problems with rubber stamps are only going to become more pressing in light of generative artificial intelligence, which holds out the promise (or temptation) to rubber-stamp purely artificial power at scale. Perhaps these pressures sounding in legitimacy will prompt more development of legal restrictions on rubber-stamp arrangements—or perhaps we will discover that existing administrative law doctrines can be adapted to stamp out (har har har) abuses of artificial intelligence.

All of this suggests a growing need to think carefully about rubber-stamping in government. While we are not yet at the point where clear answers to concrete questions about rubber stamping arrangements are readily apparent, Samaha’s rich account takes us far down this path and helps us organize our thoughts about rubber stamps. In any event, it is revealing to simply notice, as Samaha does, how rubber stamps are both like and unlike familiar problems in administrative law, and how much modern government relies on a category of decision structures that has received far less attention in scholarship than “delegation” and “independent judgment” have.

The post Rubber Stamps Running Riot appeared first on Administrative Law.

Michael E Herz

A year into the second Trump administration, the 47th president has done a pretty darn impressive job of destroying state capacity. Resources, personnel, expertise, law-following, law-enforcement, ethics, and competence have all been jettisoned. For many observers, the result is a catastrophic inability of the federal government to accomplish basic functions.

In The Secular Decline of the American State, Ganesh Sitaraman has arrived with some good news and some bad news. The good news is that the current administration’s sapping and mining are not that aberrant; Trump’s dismantling project has not, in fact, fundamentally shifted the country from the path it has been on for some time. The crisis is not acute. Whew.

The bad news, though, is that the crisis is chronic. It is the result of multiple entrenched factors; Donald Trump is a symptom as much as a cause. Things are worse than you thought.

In his title and throughout the article, Sitaraman refers to “the American state.” This could be read very broadly, but his focus is on the administrative state in particular. He begins by cataloguing four central aspects of government operation, all of which are in decline:

• The rationality element, i.e., “the state’s ability to operate according to principles of rationality and legality.”
• The delivery element, i.e., the state’s ability to deliver positive life outcomes—health care, clean water, personal security, etc.—to citizens.
• The regulatory element, i.e., the state’s control of private bad actors, protecting the citizenry from violence, threats, exploitation, fraud, cheating, scams, and similar harms.
• The evolutionary element, i.e., the state’s ability to adapt, change, and improve, for “[a] state that cannot adapt declines by definition.”

Many would agree that the present is a moment of (steep) decline with regard to all four elements. Sitaraman takes this view. But he rejects the claim that it is all Donald Trump’s fault, the claim that Republicans and general anti-administrativism are to blame, and the view that what is happening is not decline at all but merely right-sizing and the necessary recalibration of a bloated bureaucracy.

Instead, he asserts that we are witnessing a long, slow (thus “secular” in the sense that economists use the term) erosion with multiple contributing causes. In the heart of the article, he identifies fifteen (count ’em!, 15) factors behind the decline. Here is the list, in the order Sitaraman presents it (though he does not rank the factors in importance):

1. The “asymmetry of breaking and building.” One administration can demolish something quickly; it will always take longer for others to rebuild it.
2. “Contagion in systems.” A sort of ecologist’s view of state capacity, where destruction of any one component will have negative effects on many others.
3. “The fragility of credible commitments.” Effective governance rests in part on the fact that third parties can trust the state to stand by its promises; as that reliance is undermined and the state’s credibility destroyed, longer-term goals become much more difficult to achieve.
4. “The red queen effect.” State capacity must grow and develop with social and technological changes, but voters and representatives have no incentive to invest in capacity. Merely to hold steady is to decline. As for the Red Queen in Through the Looking Glass, so for species and so too administrative capacity.
5. Deep-seated skepticism of the state. This leads to insufficient bureaucratic autonomy.
6. Neoliberal enthusiasm for deregulation, privatization, trade liberalization, and austerity. These policies all directly weaken state capacity.
7. Denigration of and disregard for the bureaucracy. Over the last half-century, leaders have denigrated the bureaucracy, leading to a significant blow to its reputation and, in turn, effectiveness.
8. Legislative gridlock. By definition, Congress’s inability to pass statutes interferes with the state’s ability to deliver, regulate, and evolve.
9. Submerged and technocratic policymaking. Even if beneficial, government programs are often invisible, burdensome, and complex—and they are not always beneficial.
10. Proceduralism, or what Nicholas Bagley has labeled “the procedure fetish.” As “abundance” enthusiasts have complained, it is just too hard to get anything done.
11. Elite norms, culture, incentives, and biases. The prevailing mindset renders elected and appointed officials timid, risk-averse, and backward-looking.
12. The collapse of countervailing powers. Social groups and movements that once pushed hard, and with some effect, in favor of a robust state and against the power of oligarchs have collapsed, leaving state-building without a constituency.
13. Judges. Judicial politics and ideology over the last generation, and especially the last decade, have become distinctly anti-administrative.
14. Influential oligarchs. —Wealth and political power increasingly lie with those delighted by minimal regulation, lower taxes (and therefore fewer resources for the government), and crony capitalism.
15. Factional divisions. On both the right and the left (though more on the left), there exist sub-groups that would seek to advance state capacity but cannot do so because it would mean bucking their political allies.

Other than that, there are no obstacles! (Actually, Sitaraman says the list may not be comprehensive. But still, I feel it’s a very good start.)

In Part II, Sitaraman carries on down his cheery path, briefly laying out the consequences of the decline these factors produce: social and economic harms, rising inequality and instability, reduced innovation and technological progress, diminished resilience to crises (both natural and man-made), weakening of American power and prestige abroad, and a “doom loop” in which the state’s very inability to solve problems leads people to question the need for a strong state and to retreat into tribalism, with its attendant unrest, instability, and violence.

Does he see a future that does not involve continued decline? Alas, no. Part IV sketches four plausible future paths: Bannonist deconstruction of the administrative state, which would debilitate the social welfare and regulatory state but enhance the security and surveillance state; creation of a patrimonial, crony-capitalist state; an embrace of the abundance agenda, in which significant deregulation would be accompanied by subsidies; or the establishment of an anti-monopolist state envisioned by, most prominently, Lina Khan. For Sitaraman, the first three will do nothing to restore capacity, and the fourth just isn’t going to happen.

So where does that leave us? Sitaraman does not offer a path forward. In a brief concluding section, he states that recovery will require political leaders who will plan reforms well in advance, rather than being wholly reactive and in the moment, will be willing to act swiftly and boldly, and are prepared to delegate power. It goes unsaid, but this is not a skill set for which political leaders are especially well-known.

No one can accuse Sitaraman of being a Pollyanna. The article is not uplifting. If it were a book and followed pervasive subtitling conventions, it would be called something like The Great Hollowing Out: How Everything Leads to the Loss of State Capacity and What We Can Do About It. Except the “what we can do about it” part is essentially absent. That is not Sitaraman’s fault. There is no quick fix. That is part of his point. But by compellingly reminding us that the problem cannot be fixed by one election and identifying the larger forces at work, he has, one hopes, at least pointed to the path of reconstruction.

The post The Deep Causes of The Shallow State appeared first on Administrative Law.

Edward Rubin

Donald Trump has placed the issue of the President’s removal power before the Supreme Court, and its answer will undoubtedly be one of its most important decisions in the entire field of administrative law. Independent agencies, where leadership is appointed by the President with Senate approval and can only be removed for cause, have been a mainstay of our modern administrative state since its development in the late nineteenth century. The first modern agency, the Interstate Commerce Commission, was structured in this manner, and the model has been regularly employed for many others, including the Federal Trade Commission, the Securities Exchange Commission, and the Federal Reserve Board.

Although prediction is a notoriously difficult enterprise, current indications are that the Court will accede to Trump’s argument (sometimes described as the unitary executive theory) that the President has inherent power to remove most, or all, executive officials and that the many enacted provisions limiting him to removal for cause are unconstitutional. This will reverse a century of Supreme Court doctrine; indeed, except for some expansive language in Chief Justice Taft’s 1926 decision in Myers v. U.S. (whose actual holding is the uncontroversial principle that Congress may not participate in the removal process), the Court has never questioned the constitutional validity of independent agencies. In decisions such as Seila Law v. CFPB and Free Enterprise Fund v. PCOAB, it struck down the use of for cause provisions to create innovative agency structures, but it left the basic principle – as articulated in Humphrey’s Executor v. U.S. and revised in Morrison v. Olson — intact. The pragmatic consequences that will flow from reversing this long-established doctrine will be unfortunate at best. Donald Trump has demonstrated hostility to democratic governance and the rule of law, not merely by statements and behaviors reported by the press, but through actions repeatedly struck down by federal courts. In other words, his troubling pattern of political and legal irresponsibility can be discerned from the legal record that falls within the Court’s institutional purview. To grant him the power to ignore the limits that have accompanied Congressional grants of authority for one hundred fifty years and exercise sole control of the entire administrative apparatus is to court disaster.

If the Court is in fact intending to reach such a legally unprecedented and pragmatically dangerous conclusion, the chances are that it will rely on original intent and legal history, as it did in its similarly unprecedented and endangering Second Amendment cases. It is here that a recent article by Andrea Scoseria Katz, Noah Rosenblum, and Jane Manners, Disagreement and Historical Argument or How Not to Think About Removal, assumes its importance. The article is the most recent entry in what is now a four-part exchange with Aditya Bamzai and Saikrishna Bangalore Prakash (fully documented in the article) on the original meaning of Article II, sec. 2, which specifies — or, in this case, as in others, fails to specify – the powers of the President. Professors Bamzai and Prakash began the dialogue by claiming that, at the time of the Framers, executive power clearly included a plenary power to remove. When challenged by Professors Katz and Rosenblum, they then conceded that the matter was contested but that there was a consensus among the Framers on the subject. To support their revised argument, they rely heavily on Luther Martin’s statements in the Maryland Constitutional Convention and the debates regarding the removal power embodied in the Pennsylvania state constitution.

Professors Katz, Rosenblum, and Manners contest this evidence, briefly noting the ambiguity of Martin’s comments and then examining the Pennsylvania debates in great detail. This latter discussion is a model of detailed and scrupulous historical research, drawing on a wide range of documents and subjecting them to close analysis. In essence, their argument is that quoting Martin — who left the Constitution Convention without signing the document and railed against it in his home state – or relying on particular documents from the Pennsylvania debates, is vulnerable to the familiar charge of looking over a crowd and picking one’s friends. What actually emerges from the Pennsylvania sources, they argue, is a range of opinions about the removal issue, a debate that was never resolved. And there were certainly many people, including the signatories of the Constitution, who contested the views of Luther Martin.

The importance of this article, however, goes beyond the specifics of its historical analysis. Professors Katz, Rosenblum, and Manners provide a thoughtful, cautionary discussion about the use of history in constitutional adjudication. Drawing simple lessons from a past that is “as messy as the present” resembles treating an extensive novel like an Aesop’s fable. Historians bring years of training and decades of knowledge and experience to the task of understanding the past. Presumably, originalist Justices and scholars would not agree to perform neurosurgery on a voluntary basis, but they seem unaware that history is also a specialized field. Professors Katz, Rosenblum, and Manners avoid this tempting pitfall. Although they perform a conscientious and sophisticated historical analysis in response to Professors Bamzai and Prakash, they conclude that “the question of removal was shot through with contestation,” and refuse to draw simple conclusions designed to resolve a present controversy.

One general point that the authors emphasize in support of their more measured position is that the enterprise of historical inquiry is “to keep filling in the picture.” Professors Bamzai and Prakash, dealing with a positive law text that simply says nothing about the issue they address, seem to believe that they can discern the general image of executive power that prevailed in the minds of people who lived more than two centuries ago. But what was in their minds depended on their life experience, an experience as deep and complex as our own. That remote but subjectively intense experience is not easy to recapture. The Pennsylvania documents under discussion speak of officers “such as councilors and sheriffs” and of election by “the freeholders of each city.” Do we know what these terms conjured up in the minds of people at the time? Going further, all these people had grown up as loyal subjects of the British monarch and were thinking about government in terms that originated in British experience. When they began designing their own governments, Britain was undergoing a raging controversy (“the constitutional crisis of 1782-83”) regarding the king’s right to appoint and remove parliamentary ministers. What did they think about these events? For that matter, what did they think about Pennsylvania? Its Quaker identity during this period was much stronger than today. In the English Civil War, more recent to the Founders than our Civil War is to us, the Quakers were among the most extreme and volatile groups and, as Christopher Hill notes, had “more in common with a Leveller, a Digger or a Ranter than with a modern member of the Society of Friends.” Would this have influenced the way Pennsylvania’s political debates were viewed? Would the fact that the Quakers were virtually the only people who declared slavery immoral have any effect?

A second point is that we simply cannot approach history without seeing it through the lens of our own conceptions. This means, as Erwin Chemerinsky points out, that originalism is often “worse than nothing,” a means of propping up personal opinions by projecting them onto a supposedly authoritative past. For more than a century, linguistic theory has recognized that the interpretation of a text is an interaction between the text and the reader. The real form of the statement that “this text means X” is always “I think this text means X.” There is simply no way to subtract oneself from the interpretive process. Luther Martin was a slaveholder. Perhaps it sounds excessively woke to take this into account in deciding how much authority we want to attach to his statements about the seemingly unrelated subject of the executive’s removal power. But in deciding how much credence we want to grant to his political views, we cannot possibly think about him in the same way people thought about him at the time, when only the eccentric Quakers found slavery reprehensible. Similarly, we simply cannot think about the removal debates without bringing to it our current awareness of the meaning and consequences of those debates. Professors Katz, Rosenblum, and Manners acknowledge, indeed emphasize, this reality. They have written a carefully researched historical study of the late eighteenth-century removal debates while recognizing the realities of the interpretive process and scrupulously avoiding unsupportable conclusions. This constitutes a valuable warning to all scholars who rely on historical analysis and, one might hope, to the Supreme Court as well.

The post How to Avoid Trumping the Legal History of Removal appeared first on Administrative Law.