Administrative Law

Lobbying Language: How Supreme Court Opinions Invite Legislative Change
Jack Brake
Jack Brake is a J.D. Candidate at the University of Chicago Law School, Class of 2025.

The author thanks the University of Chicago Law Review Online team for their helpful feedback. 

How often do Supreme Court opinions include what might be called “lobbying language,” which endorses a policy position while calling for another government entity to realize it? Reviewing relevant cases, this Essay finds that the sample set includes at least a dozen examples of lobbying language. As it turns out, lobbying is not so unusual for the Supreme Court.

Here’s Your Number, Now Please Wait in Line: The Asylum Backlog, Federal Court Litigation, and Artificial Intelligence in Agency Adjudication
Youssef Mohamed
B.A. 2019, The Florida State University; J.D. Candidate 2023, The University of Chicago Law School.

أولاً†الحمد†لله†و†ثانيا†الحمد†لله†—I owe a debt of gratitude to Professor Jennifer Nou for pushing me and this piece to ask bigger questions. I would also like to thank Lauren Dunn, Dylan Salzman, Virginia Robinson, Brian Bornhoft, and the University of Chicago Law Review editors for their patience, hard work, and insights.

The U.N. High Commissioner for Refugees has estimated that, by the end of June 2021, there were nearly 4.4 million pending asylum applications worldwide. Many asylum seekers suffer heinous abuses in both the countries from which they flee and the countries through which they travel to reach sanctuary.

In Defense of 5G: National Security and Patent Rights Under the Public Interest Factors
Kenny Mok
B.A. 2016, Northwestern University; J.D. Candidate 2021, The University of Chicago Law School.

A big thank you to Professor Jonathan Masur for his advice on this piece.

From 2017 to 2019, two U.S. technology giants, Apple and Qualcomm, engaged in a war of patent suits across the world. One battle took place at the International Trade Commission (ITC), a federal agency that prevents patent-infringing products from entering the United States.

The Scope of Evidentiary Review in Constitutional Challenges to Agency Action
Conley K. Hurst
B.A. 2017, Washington and Lee University; M.St. 2018, University of Oxford; J.D. Candidate 2022, The University of Chicago Law School.

Many thanks to Professors Ryan Doerfler and Jennifer Nou for their helpful feedback during the drafting process.

Presidents have increasingly turned to the administrative state to implement their political agendas.

Necessary “Procedures”: Making Sense of the Medicare Act’s Notice-and-Comment Requirement
Josh Armstrong
BA 2017, The University of Texas at Austin; JD Candidate 2021, The University of Chicago Law School.

Many thanks to Professor Jennifer Nou for her help and advice throughout the drafting process.

Perhaps no problem has caused more consternation and outright confusion in administrative law circles than the Ad-ministrative Procedure Act’s (APA) exemptions to notice-and-comment rulemaking, the process by which agencies present proposed rules to the public for feedback before issuing them in final form.

What Seila Law Says About Chief Justice Roberts’ View of the Administrative State
Lisa Schultz Bressman
Lisa Schultz Bressman is the David Daniels Allen Distinguished Chair in Law at Vanderbilt Law School.

She thanks Kevin Stack and Michael Bressman for very helpful comments, and Peter Byrne for excellent research assistance.

In Seila Law LLC v. Consumer Financial Protection Board, the Supreme Court invalidated a statutory provision that protected the director of the Consumer Finance Protection Board (CFPB) from removal by the president except for “inefficiency, neglect of duty, or malfeasance in office.” Writing for the Court, Chief Justice John Roberts announced a new test for evaluating the constitutionality of “for cause” restrictions on presidential removal of high-level agency officials.

Out of the Separation-of-Powers Frying Pan and Into the Nondelegation Fire: How the Court’s Decision in Seila Law Makes CFPB’s Unlawful Structure Even Worse
Markham S. Chenoweth
Michael P. DeGrandis
Markham S. Chenoweth & Michael P. DeGrandis are General Counsel and Senior Litigation Counsel, respectively, at the New Civil Liberties Alliance.

NCLA filed an amicus curiae brief on the prevailing side in Seila Law.

The U.S. Supreme Court’s June 29, 2020 decision in Seila Law LLC v. Consumer Financial Protection Bureau fixed a glaring constitutional defect in the way Congress structured the Consumer Financial Protection Bureau (CFPB or Bureau).

Seila Law: Is There a There There?
Jack M. Beermann
Jack M. Beermann is Professor of Law and Harry Elwood Warren Scholar at Boston University School of Law and a 1983 graduate of the University of Chicago Law School.

In Seila Law LLC v. Consumer Financial Protection Bureau, the Supreme Court, in an opinion by Chief Justice John Roberts, invalidated the provision of the Dodd-Frank Act restricting the president’s removal of the director of the Consumer Financial Protection Bureau (CFPB) to cases of “inefficiency, neglect of duty, or malfeasance in office.” The Court’s decision leaves the director subject to removal by the president for any reason or no reason at all.

86 Special
Dismissing Decisional Independence Suits
Jennifer Nou
Professor, The University of Chicago Law School.

Many thanks to Saul Levmore for helpful comments. Benjamin Kloss provided excellent research assistance.

Administrative adjudication is poised for avulsive change. The Supreme Court recently pronounced some administrative law judges (ALJs) constitutional officers that must be appointed by the President, a department head, or a court of law.

Book review
How Not to Regulate
Lisa Heinzerling
Justice William J. Brennan, Jr, Professor of Law, Georgetown University Law Center

In the earliest days of his presidency, Donald Trump issued an executive order that exemplifies a common attitude toward regulation today. President Trump ordered federal administrative agencies to revoke at least two regulations for every one they issued and to cut regulatory costs without considering the benefits lost.