On June 11, 1946, President Truman signed the Administrative Procedure Act (APA) into law, and it was intended to be “a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated in one way or another by agencies of the Federal Government,” according to its lead sponsor in the Senate. If we were to redesign the APA for today’s version of the administrative state, what would it be? To mark the 75th anniversary of the APA, on June 11, 2021, the Gray Center hosted a conference gathering many of the George Mason Law Review Symposium Issue authors together at the Historic Decatur House in DC for an afternoon of conversations on this and related questions.

The second panel session, titled “The Life of the Law: What Has Happened Since 1946?” centered on papers by four Symposium Issue authors: The Honorable Ronald A. Cass, Aaron L. Nielson, Richard J. Pierce, Jr., and Stuart Shapiro. The panel session was moderated by Jennifer Mascott, Co-Executive Director of the Gray Center, who also gave opening remarks, along with Adam White. Links to the papers by this panel’s authors are available below, and the videos from the entire event as well as all Symposium Issue papers are available at https://administrativestate.gmu.edu/events/the-75th-anniversary-of-the-apa-the-george-mason-law-reviews-3rd-annual-symposium-on-administrative-law/.

On June 11, 1946, President Truman signed the Administrative Procedure Act (APA) into law, and it was intended to be “a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated in one way or another by agencies of the Federal Government,” according to its lead sponsor in the Senate. If we were to redesign the APA for today’s version of the administrative state, what would it be? To mark the 75th anniversary of the APA, on June 11, 2021, the Gray Center hosted a conference gathering many of the George Mason Law Review Symposium Issue authors together at the Historic Decatur House in DC for an afternoon of conversations on this and related questions.

The first panel session, titled “Creation Stories: What Did the 79th Congress Mean to Accomplish?” focused on papers by four Symposium Issue authors: Michael S. Greve and Jeremy A. Rabkin of George Mason University’s Antonin Scalia Law School, Christopher J. Walker of the Ohio State University’s Moritz College of Law, and former ACUS Administrator, Paul R. Verkuil. The panel session was moderated by Adam White, Co-Executive Director of the Gray Center, who also gave welcoming remarks along with George Mason Law Review Symposium Editor, Carly Hviding.

“Do NEPA (the National Environmental Policy Act) and other permitting requirements doom green energy and infrastructure plans?” That was the title of a recent webinar, organized by the Law & Economics Center at George Mason University’s Antonin Scalia Law School. The Gray Center’s Adam White moderated a discussion with Mario Loyola (Competitive Enterprise Institute) and Andrew Rosenberg (Union of Concerned Scientists). Both have worked firsthand on these issues: Loyola at the Council on Environmental Quality, and Rosenberg at the National Oceanic and Atmospheric Administration.

This episode features Mario Loyola, Andrew Rosenberg, and Adam White.

For the last forty years, courts have been especially deferential to federal agencies’ claims of scientific expertise. And in the last year, we have seen the Supreme Court grapple repeatedly with questions of administrative decisions related to managing the Covid-19 pandemic.

How much deference should courts afford agencies on scientific and technical matters? This was among the subjects discussed in a recent Gray Center roundtable on “Facts, Science, and Expertise in the Administrative State.” The roundtable’s working papers are now on the Center’s web site, and in this podcast two of the authors, Jonathan Adler and Don Elliott, discuss their own papers on the “super-deference” doctrine of Baltimore Gas & Electric Co. v. NRDC. They’re joined by the Center’s Executive Director, Adam White.

The Paycheck Protection Program was the single largest component of the federal pandemic relief legislation passed in March of 2020. Since then, a debate has developed about the program’s speed-accuracy trade-off, exposing the challenges administrators face when they’re responsible for administering vague statutes in emergency circumstances with little or no information up front.

Prof. Susan Morse wrote on this subject as part of a Gray Center roundtable on administration in crisis. In this episode of the podcast, she joins Adam to discuss her paper and more.

Amid the Covid-19 crisis, Operation Warp Speed helped to develop vaccines with astonishing speed. But even with a fast-tracked FDA process, there still remain significant questions about risk, liability, and intellectual property. These are the subjects of two new Gray Center working papers by Professors Sam Halabi of the University of Missouri and Professor Kristen Osenga of the University of Richmond. The papers were discussed at a roundtable last fall, and published as working papers this year. In this episode of the podcast, they join Adam to discuss their papers and what we’ve learned since the fall. (NOTE: Unfortunately, we encountered some audio difficulties during the recording).

This episode features Sam Halabi, Kristen Osenga, and Adam White.

Executive orders are not a new tool of presidential power — all presidents have used them, and some much more than others. But in recent decades they seem to have become a more significant and prominent aspect of American government. In today’s episode, Bowdoin College’s Andrew Rudalevige and the Gray Center’s Adam White describe the processes of E.O. development, with special focus on the Office of Management and Budget’s central role. It’s all the subject of Rudalevige’s new book, “By Executive Order: Bureaucratic Management and the Limits of Presidential Power.”

This episode features Andrew Rudalevige and Adam White.

At least five Supreme Court justices seem interested in reconsidering the current version of the “Nondelegation Doctrine.” And their recent judicial opinions have inspired waves of new scholarship for and against judicial reform. Last spring, the Gray Center invited scholars to workshop new papers on the nondelegation doctrine; now those articles are online in our Working Paper Series, and two of the authors—Kristin Hickman and Nicholas Parrillo—chat with Adam White about their papers and the broader nondelegation debates.

The Biden Administration faces immensely consequential policy choices on questions of financial regulation—from the proper regulatory standards to apply to banks for the sake of safety, soundness, and systemic risk; to cryptocurrencies; to the use of financial regulatory agencies to drive policy on non-financial issues. And as the Gamestop/Robinhood saga highlighted, new technologies can radically complicate even old policy frameworks. How will the new administration and Congress confront these challenges?

On March 11, 2021, the Gray Center hosted an expert panel on “The Future of Financial Regulation in the Biden Administration,” to confront these issues and more. This webinar was the fifth installment of the Gray Center’s series, “The Administrative State in Transition.” It featured the following panel of experts: Peter Conti-Brown, of the Wharton School of the University of Pennsylvania and the Brookings Institution, Kathryn Judge of Columbia Law School, and Jennifer J. Schulp, of the Cato Institute’s Center for Monetary and Financial Alternatives. The conversation was moderated by the Gray Center’s Executive Director, Adam White.

Throughout his presidential campaign, Joe Biden called for national reforms to police practices and civil rights. Immediately after the election, his transition team highlighted Racial Equity as one of its four policy priorities. And right after his inauguration, he signed a set of initial executive actions focused generally on discrimination. Yet at the same time, he has argued that the focus should be not on “defunding the police,” but rather on promoting accountability. With that in mind, what specific policies might the Biden Administration and Congress pursue in the months and years ahead? What reforms are in the federal government’s direct regulatory powers, and which will need to be pursued through federal spending or other powers? And what issues are committed to state and local governments?

To discuss these issues, on February 25, 2021, the Gray Center hosted the fourth event in its webinar series, “The Administrative State in Transition,” featuring the following panel of experts: Rachel Harmon of the University of Virginia School of Law, Gail Heriot of the University of San Diego School of Law, and Ronald S. Sullivan, Jr., of Harvard Law School. The conversation was moderated by the Gray Center’s Director, Adam White.

From George Washington’s administration onward, the federal government’s power over financial markets and banks has always occupied a nebulous corner of American constitutional government. Recently the Gray Center posted three new working papers exploring different aspects of financial and monetary regulation.

In this podcast, Adam White chats with two of the authors: Columbia Law School’s Lev Menand, on financial regulators’ power to “supervise” banks; and Wharton’s Peter Conti-Brown on “the problem of Federal Reserve governance.”

“Tech policy” is a broad and nebulous label. But from antitrust to national security to social media moderation, recent years have been filled with difficult questions about federal law and policy, and myriad proposals for major new regulatory initiatives surrounding new technologies and big tech companies. Moreover, these debates scramble familiar partisan and ideological lines. What policies might the new Biden administration pursue — in legislation, and in regulation?

To discuss this topic, the Gray Center hosted a webinar on February 11, 2021, with a panel of leading experts, including Loully Saney of the Day One Project, Alec Stapp of the Progressive Policy Institute, and Ted Ullyot, former General Counsel of Facebook. The conversation was moderated by the Gray Center’s Director, Adam White. This was the third event in the Gray Center’s series, “The Administrative State in Transition.”

Promptly after the election, President-elect Joe Biden’s official “transition” team announced that climate change would be one of the new administration’s top four policy priorities. The transition’s website listed a variety of familiar and new ways in which the Biden administration intends to grapple with this issue. And, of course, this is just one of several issues of energy and environmental policy that the new administration will be handling. What new legislative and regulatory initiatives should we expect? What challenges will they confront? What are their prospects for success?

To discuss these and other issues, the Gray Center hosted a webinar conversation with several experts, including Jonathan Adler of the Case Western Reserve University School of Law, Gene Grace of American Clean Power, and Lisa Heinzerling of the Georgetown University Law Center. The conversation was moderated by the Gray Center’s Director, Adam White. This was the second event in the Gray Center’s series, “The Administrative State in Transition.”

Over the last four years, the Trump administration continued the longstanding framework for OIRA regulatory oversight, but it also developed new oversight tools, such as the new regulatory budgeting framework of Executive Order 13771. How will the new Biden Administration structure its own frameworks for regulatory oversight? What old and new tools will it keep? And what new innovations might it deliver?

To discuss these and other issues, the Gray Center hosted a webinar conversation with several leading experts: Michael Livermore of the University of Virginia School of Law, Jennifer Nou of the University of Chicago Law School, and Stuart Shapiro of the Rutgers University Bloustein School of Planning and Public Policy. The conversation was moderated by the Gray Center’s Director, Adam White. This was the first event in the Gray Center’s 2021 virtual event series, “The Administrative State in Transition.”

In 2008, Michael Livermore and Richard Revesz wrote Retaking Rationality, a book arguing that cost-benefit analysis of regulations should be recognized not as an anti-regulatory weapon, but rather a nonideological tool for promoting good government. Now they return with a new book, Reviving Rationality, which analyzes developments since 2008, and proposes further reforms for cost-benefit analysis going forward. They discuss it with the Gray Center’s Executive Director, Adam White.

Governments make rules. But governments often grant exemptions from those rules, either when the rules are written or in the ways they are enforced. And those exemptions are the subject of a new article: “Unrules” by Cary Coglianese, Gabriel Scheffler, and Daniel Walters.

 

The Supreme Court’s recent decision in Seila Law v. CFPB, and the upcoming case of Collins v. Mnuchin, return our attention to the Constitution’s allocation of powers among the President and Congress—and to the famous cases nearly a century ago when the Supreme Court tried to grapple with those issues amid the rise of the modern administrative state.

As it happens, Professor Robert Post of the Yale Law School is also thinking back to that era, as he writes the next volume of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States. He gives us a preview in a fascinating and entertaining article for the Journal of Supreme Court History, titled “Tension in the Unitary Executive: How Taft Constructed the Epochal Opinion of Taft v. United States.” (Also available to read at SSRN.)

Last summer, the Supreme Court ended its year’s work with significant decisions involving administrative agencies. This new year now underway is set to include major cases involving agency structure and independence; transparency; and a host of other issues.

To discuss these issues and broader themes of administrative governance, the Gray Center’s annual Supreme Court preview featured three experts: Jonathan Adler of the Case Western Reserve University, Aditya Bamzai of the University of Virginia, and Katie Townsend of the Reporters Committee for Freedom of the Press. The discussion, in a live webinar on October 23, 2020, was moderated by our Executive Director, Adam White.

Congress’s enactment of the Clean Air Act fifty years ago was meant to change our environmental impacts — but did it change Congress, too? That is the question that Prof. Frank Manheim of George Mason University’s Schar School of Public Policy asks in his new working paper, “Transformation of Congressional Lawmaking by the Clean Air Act of 1970 and Its Effects.”

In this episode, part of the Gray Center’s “Congress and the Administrative State” conference series, Prof. Manheim and Adam White are joined by Prof. David Schoenbrod, a Trustee Professor of Law at the New York Law School and a Senior Fellow at the Niskanen Center, to talk about environmental law and modern lawmaking.

The executive branch’s bureaucracy gets a lot of attention. But Congress’s bureaucracy gets much less—yet it is extremely important. In a new Gray Center working paper titled “The Congressional Bureaucracy,” Professors Abbe Gluck and Jesse Cross analyze several parts of Congress’s bureaucracy—some well-known, like the Government Accountability Office, and others less so, like the Office of Law Revision Counsel.

 In this episode, they discuss their new paper with Gray Center Executive Director, Adam White, and Professor Josh Chafetz. Together, they consider what “the congressional bureaucracy” tells us about Congress itself and the laws that it enacts.