Administrative Law, The American Public Law System, Cases and Materials

Jerry L. Mashaw, Yale University Law School

Peter M. Shane, Ohio State University College of Law

Aditya Bamzai, University of Virginia School of Law

Emily S. Bremer, Notre Dame Law School

Margaret B. Kwoka, Ohio State University College of Law

Nicholas R. Parrillo, Yale University Law School

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Table of Contents

CHAPTER 1

• Updated statistics on size of and spending by federal executive branch
• Updated introductory discussion of the history of administrative law to account for Trump and Biden Administrations and latest Supreme Court developments

CHAPTER 2

• Major expansion of treatment of the nondelegation doctrine, including principal-case treatment of Field v. Clark, Schechter Poultry and Gundy v. United States, plus new notes, including treatment of the originalist debate on nondelegation
• Reduction of Amalgamated Meat Cutters v. Connolly to note status, given that the doctrine is now going in a different direction
• Deletion of the section on trans-substantive statutes, with some of the material moved to other parts of the chapter and of the casebook more generally where it is subject-relevant
• Deletion of the case study of statutory specificity and the Delaney Clause
• Expanded treatment of the Congressional Review Act
• Addition of a principal case on the appropriations power, CFPB v. Community Financial Services Association of America

CHAPTER 3

• Updated description of executive branch units and the Executive Office of the President
• Reorganization of materials on presidential appointment and removal power for greater ease of teaching new developments
• Addition of United States v. Arthrex as a principal case
• Prefacing modern cases on presidential removal power with new discussion of “Notable Early Constitutional Controversies Outside the Courts” concerning presidential removal authority
• Following excerpts from Myers and Humphrey’s Executor with extended text on, “Removal Jurisprudence Between Humphrey’s Executor and the Roberts Court”
• Addition of Seila Law LLC v. Consumer Financial Protection Bureau as a principal case
• Treatment of Collins v. Yellen in notes, along with its implications for the Social Security Administration under the Biden Administration
• Note on the legal controversy concerning whether agencies can create “independent” administrators through their own rules
• Updated notes on the presidential use of “workarounds” to avoid the Senate role in confirmations
• Significantly rewritten material on the legal underpinnings of the civil service
• Updated material on presidential supervision of administration to take account of the Trump and Biden Administrations
• Addition of Public Citizen Health Research Group v. Tyson (D.C. Cir. 1986) to illustrate difficulty for courts in reviewing OMB’s role in supervising agency rulemaking

CHAPTER 4

• Revised organization that grounds the chapter in key conceptual issues, better reflects the relationship between the statutory and constitutional dimensions of adjudicatory procedure, and highlights points of current doctrinal evolution.
• New section on “Preliminary Concepts and Questions” that:
  • Defines “adjudication” with new excerpts from Londoner and Bi-Metallic, the Administrative Procedure Act (APA), and the Attorney General’s Manual on Administrative Procedure, supplemented by concise notes that provide historical grounding for modern practice.
  • Provides a reorganized and clarified treatment of the Article III limits on agency adjudication, concluding with the Supreme Court’s 2024 decision in SEC v. Jarkesy as a new principal case.
• New subsection on “The Presiding Official” in adjudicatory hearings collects related, cutting-edge issues of neutrality and the statutory separation of functions, the constitutional status of adjudicators (including a tightly edited version of the Supreme Court’s 2018 decision in Lucia v. SEC as a new principal case), and the challenges of managing adjudicatory personnel (with AALJ v. Colvin replacing Nash v. Califano as a principal case).

CHAPTER 5

• New opening section integrating the two Chenery cases
• New notes on National Petroleum Refiners v. FTC including recent controversy over the case’s viability and the legality of FTC rulemaking
• Expansion of the note discussion of technology-forcing regulation to consider its relative success in the field of air pollution, in contrast to auto safety
• Section on guidance condensed by deleting Center v. Auto Safety v. NHTSA
• New principal case on interpretive rules, National Council for Adoption v. Blinken
• New note case on procedural rules, AFL-CIO v. NLRB
• New principal case on the APA’s good cause exception to notice and comment procedures, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania
• New note case on logical-outgrowth challenges, Mock v. Garland
• Condensation and revision of conceptual section on the “ossification” of rulemaking

CHAPTER 6

• Reorganized the section on administrative investigations, adding U.S. v. Martinez-Fuerte on suspicion-less checkpoint searches.
• Streamlined the discussion of FOIA’s statutory structure and policy implications, and added a discussion of structural FOIA litigation, including the summary judgment decision in Nightingale v. USCIS, a class action over processing delays.
• Updated discussions of FOIA’s exemptions in key aspects. First, replaced certain principal cases with newer authoritative decisions, including substituting US Fish and Wildlife v. Sierra Club for NLRB v. Sears Roebuck on the scope of Exemption 5 and the DC Circuit decision in EPIC v. DOJ (concerning special counsel report on Russian election interference) for Department of Defense v. FLRA on the scope of Exemption 6. Second, added Food Marketing Institute v. Argus Leader on the scope of Exemption 4.
• Added cases exploring other aspects of FOIA’s requirements, namely, the appropriate scope of the Glomar doctrine and FOIA’s affirmative disclosure requirements.

CHAPTER 7

• Revised the order of the chapter to begin with cases applying the arbitrary-and-capricious standard, before turning to doctrinal developments regarding questions of fact and law.
• Added a lengthy new note on the complex issues addressed in Department of Homeland Security v. Regents of the University of California, which also describes the DACA and DAPA programs and connects the case to the earlier discussion of notice-and-comment rulemaking and Texas v. United States.
• Replaced the prior principal case addressing the standard of review for factual issues in informal proceedings with Association of Data Processing Service Organizations v. Board of Governors of the Federal Reserve System, along with notes on the interaction between the APA’s provisions.
• Added a section on the history of judicial review of agency legal determinations to help the reader assess the various arguments made in Loper Bright v. Raimondo.
• Added as a principal case the Supreme Court’s 2024 decision in Loper Bright v. Raimondo, along with extensive notes exploring the nuances of the opinion.
• Added as a principal case West Virginia v. EPA, along with a set of notes exploring the “major questions” doctrine.
• Added as a principal case Kisor v. Wilkie, along with a set of notes exploring its relationship with Loper Bright and other developments in the area.

CHAPTER 8

• A new note on the “other available remedies” limitation in APA 704 to take account of recent circuit court developments.
• A new note on statutes of limitations to take account of recent Supreme Court developments.
• Removal of subsection on primary jurisdiction as no longer playing a significant role in the jurisprudence on reviewability.
• Removal of subsection on taxpayer standing as overtaken by events.
• A new section on the question of whether universal injunctions and universal vacatur are available remedies.

Learn more about this series.