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.

Richard Murphy

Recently, for whatever reason, I found myself thinking that it would be helpful to read something that could help me order my scattered thoughts about presidential control of regulatory power. Maybe because of all the executive orders. Fortunately, I ran across just the thing, Presidential Regulation, by Professors Timothy Meyer & Ganesh Sitaraman, which provides a wonderfully illuminating account of the nature, history, implications, and likely future of, well, presidential regulation.

Meyer and Sitaraman explain that presidential regulation “takes place when the President relies on his own powers—whether statutory, constitutional, or a combination thereof—to regulate the U.S. economy in ways not explicitly contemplated or directed by Congress.” (P. 807.) Presidential regulation is thus distinct from “presidential administration,” a la Justice Kagan, which involves presidents “shaping and taking credit for agency actions.” (P. 809.) Rather, presidential regulation involves direct exercise of powers delegated to the president by the Constitution or Congress.

Two other characteristics of presidential regulation help explain why presidents might prefer it. One is that a complex set of doctrines limits the availability and scope of judicial review of presidential, as compared to agency, action. Courts are therefore less likely to muck up presidential regulation. Another is that agency actions are subject to a range of procedural requirements, imposed by Congress or the White House, that do not burden presidential actions. Most notably, the Administrative Procedure Act, which generally requires notice-and-comment procedures for agency legislative rulemaking, does not apply to presidential action. The upshot is that considerably less “administrative law” impedes presidential regulation.

Meyer and Sitaraman provide a brief historical account of the “progenitors” of presidential regulation. Early examples include the regulation of trade with combatants, including President Washington’s Proclamation of Neutrality and President Lincoln’s blockade of Confederate ports. (P. 825.) Later examples focus on presidents’ exercise of statutory powers to set tariffs starting in the nineteenth century and their extensive exercise of economic emergency powers in the twentieth. Congress has enabled the latter by passing many statutes that grant presidents effectively unreviewable power to declare that an “emergency” exists, coupled with sweeping powers to address that emergency. (Pp. 830-835.) The International Emergency Economic Powers Act (IEEPA), which President Trump has made the centerpiece of his second administration’s tariff regime, figures prominently in this discussion.

Meyer and Sitaraman contend that the last eight years, since the beginning of the first Trump administration, have marked a new “normalization” of the use of presidential regulation, at least nominally connected with some foreign policy concern, to unilaterally control the domestic economy. To support this contention, they describe a series of Trump and Biden administration actions including: 1) Trump’s invocation of section 232 of the Trade Expansion Act of 1962 to impose steel and aluminum tariffs; 2) Trump’s imposition of sweeping tariffs on China under section 301 of the Trade Act of 1974; 3) Trump’s invocation of IEEPA to impose tariffs to address “emergencies” relating to the trade deficit and fentanyl; 4) Trump’s invocation of the Constitution, IEEPA, and the National Emergencies Act to justify security controls on the bulk-power system; 5) invocation of the Defense Production Act (DPA) by both Trump and Biden to address supply chain issues relating to COVID-19; 6) Biden’s invocation of the DPA to prioritize development and deployment of green energy technologies; 7) invocation of IEEPA by both Trump and Biden to regulate telecommunications (e.g., Biden’s executive order banning the sale of bulk personal data); and 8) Biden’s invocation of the DPA to justify a regulatory regime for artificial intelligence. (Pp. 835-850.)

Whew!

The balance of Presidential Regulation discusses why so much presidential regulation is happening now, why we can expect more of it in the future, and the unfortunate implications of this shift for good governance.

The “why now” question arises in part because presidential regulation generally relies on a mix of constitutional authorities, which have been around for a couple of centuries, along with statutory authorities that are many decades old. Meyer and Sitaraman attribute the recent, massive expansion of presidential regulation to “congressional inaction and polarization, the rise of expansive theories of presidential power, the decline of deference to administrative agencies, and a resurgence in judicial deference to presidential actions in foreign affairs coupled with the blurry boundary between foreign and domestic affairs.” (P. 850.) Of this lot, I can’t help but think that the decay of congressional interest and capacity, which Meyer and Sitaraman list first, is the primary driver. Also, an image of velociraptors probing electric fences keeps coming to mind.

The authors close with a discussion of some unfortunate implications of the rise of presidential regulation, which include less transparent, less accountable, and less democratic governance. They reject the shibboleth that presidential action is necessarily democratic in nature, as the president is the nationally elected avatar of the people’s will. As they aptly observe, “[w]hile legislation reflects compromise among representatives from all over the country, and agency rulemaking is subject to procedures that ensure affected parties have an opportunity to participate, presidential regulation (like presidential control of foreign affairs) has none of these features.” (P. 862.) Free from procedural safeguards that ensure democratic participation and transparency, a president engaged in presidential regulation “decides which outside interest groups to consult, which experts within or without the government to seek advice from, and which domestic constituencies to favor.” (P. 862.) Democracies, one might think, should be careful about handing out that kind of power.

The rise and rise of presidential power is one of the great political, legal, and social stories of our time. Professors Meyer’s and Sitaraman’s excellent article, Presidential Regulation, rewards the reader with a wealth of fascinating detail and analysis of an increasingly important dimension of this power.

The post The What, When, How, and Why of Presidential Regulation appeared first on Administrative Law.

Jameson Payne

As a quick search through JOTWELL’s archives will prove, scholars have given no shortage of attention to universal remedies. And it’s no surprise why: the question of whether courts can grant non-party relief is not just a thorny constitutional matter; its practical effects are also immense. Therefore, the universal remedies debate has enjoyed lively back and forth, with compelling arguments—some historical, some pragmatic—issued from both camps. And while this debate raged on, the Supreme Court sat in patient wait, signaling its views with a concurrence here and there, waiting for the opportune moment to strike. And strike it did.

One might think that SCOTUS’ ruling last term in Trump v. CASA will inter the universal remedies debate, at least practically, since it ruled that “universal injunctions likely exceed the equitable authority that Congress has given to federal courts.” But this is improbable. While injunctions may be off the table, the opinion made an important caveat for alternative types of universal relief. Perhaps the most significant among these alternatives is “vacatur,” which some argue is permitted by the Administrative Procedure Act’s instruction that courts “hold unlawful” and “set aside” agency action. With standard-issue universal injunctions no longer permitted, vacatur must now work overtime to meet the demand for nationwide relief. The focus of the debate, therefore, shifts to vacatur, and all the same problems raised in CASA must now be reconsidered. Does vacatur run afoul of the same Article III principles that nationwide injunctions do? And what are its costs and benefits?

It is into this debate that Eli Nachmany enters, showing at least one pitfall to the anti-vacatur position. In his article, Vacatur as Complete Relief, Nachmany reviews a lesser-known SCOTUS case from this term—Diamond Alternative Energy v. EPA—and uses it to illustrate an unreckoned consequence of reading vacatur out of the APA.

The thrust is this: in Diamond Alternative, the Court dealt with a challenge by fuel producers against the EPA allowing California to impose strict fuel-emission standards. But the important thing to note is that the fuel producers were not regulatees. Rather, they were “unregulated third-party plaintiffs” whom the EPA regulation had “adversely impacted.” It was therefore unclear whether the plaintiffs’ injury was redressable for Article III purposes: was there sufficient likelihood that rescinding the regulation would remedy the downstream market effects that had harmed their economic interests?

The Court answered yes, appealing to “dynamic markets and the effects of interrelated economic forces and regulatory programs that change over time.” But that is hardly the most interesting part of this case. What Nachmany takes away from Diamond Energy is the fact that vacatur was the only remedy that could redress plaintiffs’ injury. Because they were not regulatees, they could not get an injunction against the agency. Nor could they enjoin the regulatees themselves, since the APA does not permit private suits. Rather, the Court had to vacate the rule altogether.

The upshot of this observation is that many injuries brought by adversely affected parties depend upon vacatur. And vice versa, killing vacatur becomes a strong medicine, since “unregulated third parties [would] not be able to challenge agency action that has a predictable, adverse effect on them.” A similar problem was brought up in Corner Post v. Board of Governors of the Federal Reserve: but in that case, as John Harrison has shown, relief could have been granted without vacatur. What Nachmany demonstrates through Diamond Alternative is that there is a meaningful class of cases whose only recourse is vacatur.

Showing great charity to his interlocutors, Nachmany acknowledges that his argument is a pragmatic one, and that “[u]nder prevailing theories of statutory interpretation… policy consequence[s] [are] largely irrelevant to the task of determining what “set aside” means in the Administrative Procedure Act.” Indeed, several authors—including John Harrison, Aditya Bamzai, and myself—have raised historical and constitutional objections to vacatur. The question, therefore, becomes whether the Court is willing to follow textualism to its bitter end, foreclosing a large swath of regulatory challenges in the process.

But in fact, the historical question is not so simple. What exactly the twentieth-century courts understood themselves to be doing when they “set aside” a rule is obscure. Scholars like Mila Sohoni have argued that the APA imports language from so-called “special statutory proceedings,” which she believes could grant universal relief. Others, like myself and Aditya Bamzai, have looked instead at the claim-preclusive effect of judgments at the time, concluding that one court’s vacatur could not bind a collateral jurisdiction. Unfortunately, there has been no silver bullet. Remarkably, however, Nachmany’s article may give us a new route towards escaping this historical quagmire.

By reformulating a remedy problem as a standing problem, the question becomes much simpler. When did courts start allowing non-regulated parties to challenge agency action? By the same logic that Nachmany reads into Diamond Alternative’s redressability problem, it follows that courts would have to grant vacatur to effect “complete relief” in challenges by non-regulated parties. To this end, he cites one circuit case from the 1940s, A.E. Staley Manufacturing Co. v. Secretary of Agriculture, where this type of suit may have been entertained. I am unsure how much should be read into this case, which I analyze in my own article. But what matters is not Staley’s holding, and instead that we now have a useful route for homing in on vacatur’s historical origin.

This procedure cuts through the impenetrable subtleties of pre-APA administrative law that scholars have used—to limited avail—in an attempt to solve whether the APA allows vacatur. The question simply becomes one of standing, a concept whose development is better documented and less complicated. By providing a strong practical argument, Nachmany has inspired us with the means towards a new history of universal relief.

The post Vacatur as Redressability: Towards a New History of Universal Relief appeared first on Administrative Law.

Margaret Kwoka

Allegations of illegality—sometimes quite serious in nature—are, sadly, no stranger to the presidency. Nearly every recent President has faced some sort of scandal and attendant inquiry. They all sound familiar. Obviously, there is Nixon’s benchmark Watergate scandal. But then there is also the Iran-Contra affair of Reagan’s presidency. Clinton’s extramarital activities. George W. Bush’s involvement in outing Valerie Plame as an undercover CIA officer. Biden’s personal possession of classified documents. Trump’s involvement in the January 6 attacks on the Capitol. Safe to say, these matters show no sign of abating. The theater of investigations that follow these scandals is also familiar, all promising some version of accountability. Special prosecutors are appointed. Inquiries are launched. Grand juries are sometimes convened. Congress may even bring articles of impeachment or hold an actual impeachment trial.

But the political fight often focuses on the investigation itself. Claims of executive privilege prevent access to key documents, allegations of partisanship color the investigations, and constitutional constraints abound, all while accountability remains elusive. In an incredible read and a fantastic example of one of my favorite forms of scholarship, Professor Jonathan Shaub sketches a vision for reforms that parts the muddy waters of our current practices and shows us a practical and meaningful path to accountability at the highest levels of the executive branch. Indeed, the best part of Professor Shaub’s vision, laid out in White House Inspection, is that he divorces the trickier consequences—actual enforcement or legal peril—from the kind of accountability that frankly has often had greater effect, the watchful eye of an independent party empowered to inspect the actions of the President.

Professor Shaub begins by documenting and evaluating our current methods for executive accountability: primarily special prosecutors and congressional investigations. (He also briefly explores special commissions, such as the 9/11 Commission, or inspectors general, but these bear less direct relevance to investigating presidential misconduct.)

Carefully tracing the history, Shaub demonstrates how special prosecutors predate Watergate, but Watergate made them more prominent. After that scandal, the Ethics in Government Act of 1978 established the office of Independent Counsel as a permanent feature of the Department of Justice. Yet, subsequent high-profile investigations nonetheless appeared partisan, and the power of the office was questioned, leading to its lapse in statutory authorization. Subsequently, the DOJ enacted regulations (still in effect) to authorize the Attorney General to appoint an internal independent prosecutor in their discretion, and even recent special prosecutors have been appointed outside that authority and not constrained by its provisions.

Why aren’t independent or special counsel sufficient for these purposes? In short, Shaub compellingly explains, they have never really operated independently enough in some respects, yet have operated all too independently in others. For example, these investigations have become political weapons in many instances, rather than investigations by neutral third parties. But they also have empowered the appointed individual to specially investigate a single person to the full extent of their authority, justifying their existence only by racking up enormous costs, burdening the target of their investigation, and eventually finding some offense to show for it. Indeed, this “single-purpose prosecutor” risks serious interference with the executive by doggedly pursuing their mission to the fullest extent of their authority.

Congressional investigations fare no better in Shaub’s evaluation. While Congress’s authority to investigate executive malfeasance—including to demand information by subpoena—is an implied power directly under its constitutional legislative authority, Shaub describes how the scope of that constitutional authority is often contested in important ways. Indeed, both the breadth of Congress’s authority and, perhaps more prominently, the fight over whether Congress’s subpoena power is subject to claims of executive privilege and in what context are inherent separation of powers conflicts that potentially limit Congress’s reach. In addition, Congress has no enforcement authority for its subpoena power, and going to court is typically impracticable. Beyond constitutional concerns, however, Congress is so inherently partisan that its investigations lack the kind of legitimacy in the eyes of the public that one would hope for. And finally, but importantly, Congress often lacks the expertise needed to effectively investigate.

On top of those failures, both independent prosecutors and congressional investigations present problems regarding confidentiality. The executive branch does not want to lose control over sensitive information to another branch of government, especially one with potentially partisan motivations that incentivize disclosures. And the internal investigations with special prosecutors have the ancillary effect of producing an enormous volume of materials that lead to Freedom of Information Act requests and other fights over access.

This leads us to the payoff of Shaub’s fascinating history and careful critique of our existing oversight mechanisms. Shaub makes a conceptual move that is as simple as it is brilliant: he advocates for carving out any actual law enforcement function, and creating a body whose sole purpose is to, as he puts it, “inspect.” Shaub asserts that by focusing on “inspection” (as distinct from investigation which accompanies an expected prosecution), the function can be housed in a body that maximizes independence, objectivity, expertise, and accountability. This new “inspection” function would be housed in a standing multimember body located in the Department of Justice, but granted various protections for independence (such as staggered terms, appointment qualifications, party balance, and, so long as we have them, removal protections). This body would be empowered to collect information about White House activities, including the power to issue administrative subpoenas, but not the power to bring charges or enforce, for which referral to another authority would be necessary. Solutions that stand apart from criminal prosecution are more necessary than ever, given that the Supreme Court raised the specter that some vast swath of presidential conduct is beyond the reach of criminal investigations entirely in Trump v. United States. Even if not referring any matter for criminal enforcement, however, Shaub says this body should be required to make regular reports to the DOJ and to Congress concerning its activities.

This sort of internal watchdog, Shaub points out, is not brand new; analogs are sprinkled here and there in existing practices. But for those of us thinking hard about new kinds of accountability structures in government, a proposal like this is extremely exciting. In the past, I have proposed an independent information commission as a mechanism to implement and enforce government transparency obligations; Professor Shaub’s proposal shares some core features by imagining a government counterweight to ever-growing executive power. But what Shaub does beautifully is imagine not just how this body could solve the existing problems, but the ways that this opens up possibilities for flexibility moving forward. He posits that this body also be charged with inspecting judicial ethics matters at the Supreme Court, or could Congress delegate competency inquiries to this body for the purposes of the 25^th Amendment?

If you, like I, are desperately seeking more creative solutions for accountability in government, you should read Shaub’s illuminating work. And then we should figure out how to make that vision a reality.

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Jonathan Masur & Eric Posner, The Common Political Foundations of Originalism and Cost-Benefit Analysis, 77 Admin. L. Rev. 65 (2025).

Mila Sohoni

Looming over our law, or lurking beneath it, are theoretical frameworks that guide how we think about it. With respect to administrative law, there are two such influential frameworks that will immediately spring to mind and that share much in common: originalism and cost-benefit analysis.

What? Readers might already be scratching their heads. This strange pairing would seem to be worlds apart. Originalism is the stuff of lofty theory and founding-era history and hard-fought debates concerning the nature of fundamental rights and the separation of powers. Cost-benefit analysis, in contrast, is the stuff of pocket protectors and green eyeshades and hard-fought debates concerning discount rates and valuations. Originalism is for lawyers; cost-benefit analysis is for economists. But as Professors Jonathan Masur and Eric Posner demonstrate in a recent article, The Common Political Foundations of Originalism and Cost-Benefit Analysis, the two have more kinship than meets the eye.

Professors Masur and Posner argue that originalism and cost-benefit analysis are best understood not as neutral methodological tools but as analytical frameworks that have risen to prominence through the financial backing and political mobilization of business interests. Their provocative paper presents originalism and cost-benefit analysis as ideas with shared genealogies and eerily similar effects: both emerged in the 1970s, both gained institutional traction through sustained advocacy campaigns, and both have served to constrain governmental action in ways that align with pro-business preferences. Far from being apolitical techniques that emerged organically from intellectual discourse, both of these “midlevel methods” (P. 68) were nurtured and promoted by “an overlapping web of business groups and intellectual support from academic supporters associated with pro-market trends in intellectual and political circles in the 1970s and 1980s” (P. 68).

The empirical case that the authors present centers on the period from the 1970s through the 2020s. They trace the rise of both methods by showing that references to cost-benefit analysis and original meaning show parallel rising trajectories in academic articles and judicial opinions (Pp. 75-77). They then consider why there was a joint rise in these ideas (P. 82). They contend that the emergence of neoliberalism helped along cost-benefit analysis, but argue that the “neoliberal turn, stimulated by economic stagnation that was blamed on policy judgment, not on judicial decisions, is not a good explanation for the rise of originalism” (P. 85). They reject the hypothesis that originalism and cost-benefit analysis achieved prominence because of their “democratic sanction” (P. 87), finding little evidence that either cost-benefit analysis or originalism has garnered meaningful support from Congress, the public, or the President. Ultimately, they maintain, the rise of this pair of ideas comes down to money and to the business interests that supply that money: “Ideas matter, but they matter more if they are funded.” (P. 93.) Their excavation of the organizational ecosystem that has supported both originalism and cost-benefit analysis is fascinating: they list about a dozen organizations “funded by the Koch network that have promoted originalism and cost–benefit analysis” (P. 99), and conclude that “business’s role in promoting cost–benefit analysis and originalism is unmistakable” (P. 100).

The authors next proceed to identify how, “like twins separated at birth,” the two theories “bear a striking conceptual resemblance” (P. 101). Both of them claim to constrain decision-making while preserving enough flexibility to avoid harsh outcomes in politically salient cases. Both rest on technocratic foundations that empower communities of experts—lawyers and historians for originalism, economists for cost-benefit analysis—to police the boundaries of acceptable practice (P.107). And both methodologies are tied to empirical anchors—history for originalism, math for cost-benefit analysis—that provide at least the appearance of “scientific rigor” (P. 107).

The question going forward is whether these two frameworks will endure. The authors detect growing “cracks” (P. 107) in the coalitions that have sustained both methods. The Biden Administration’s revision of OMB Circular A4 to incorporate distributional weights fractured the cost-benefit analysis community, with business groups and academic economists pushing back against what they saw as a departure from orthodox methodology to include welfarist concerns. (Pp. 109-11.) In the wake of this conflict, “[t]he bipartisan consensus that supported [CBA] has evaporated” (P. 111). Similarly, the authors hazard that we may have reached “peak originalism” (P. 111), as originalist justices occasionally rule against business interests on originalist grounds—a development that could eventually erode corporate support for the method. (They acknowledge, however, that another path forward would be simply “inconsistent originalism—originalism when it benefits the business community, but not when it harms it” (P. 113)). Ultimately, if “midlevel legal methods” such as originalism and cost-benefit analysis depend on coalition maintenance rather than on pure intellectual merit, they are vulnerable to the risk of losing influence when they turn out to produce outcomes that the members of their coalition do not support.¹

Whether originalism and cost-benefit analysis will prove durable enough to survive the fracturing of their supporting coalitions—should that occur—remains an open question. But the paper’s recitation of their joint rise offers a valuable, if sobering, lesson about how legal ideas gain purchase and maintain influence in our law. The administrative state has always been a battleground for competing visions of the proper scope of government power. What Professors Masur and Posner’s paper helps to reveal is how two of the dominant ideas that have shaped the law and the functioning of the modern administrative state carry their own political baggage—baggage that (not coincidentally) contains some pretty fat wallets. But if our world is one in which legal methodology is really politics by other means, or really money in another denomination, perhaps the most important question is not which methods are right, but who is actually deciding which methods we use.

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Christopher Walker

In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 524 (1978), the Supreme Court famously announced that “[a]gencies are free to grant additional procedural rights [beyond those required by the Administrative Procedure Act] in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them.” In an administrative law course, we focus somewhat myopically on the second half of the statement—that courts cannot impose more procedural requirements on federal agencies than Congress has commanded by statute. But the first part of the sentence is just as important. It is in Vermont Yankee’s “white space,” as Emily Bremer and Sharon Jacobs aptly call it, that so much of the action in administrative law takes place. This is the world of internal administrative law.

Historically, internal administrative law has often been neglected in the literature, with some exceptions such as Jerry Mashaw’s majestic Bureaucratic Justice. In recent years, however, we have seen more scholarly attention, which is chronicled in Gillian Metzger and Kevin Stack’s 2017 article Internal Administrative Law. I have contributed some to this literature, trying to operationalize internal administrative law and exploring how it can constrain and empower regulatory activities outside of courts. A recent addition to the literature is well worth a read and the subject of this review: Professor Stack’s article The Internal Law of Democracy is a spectacular exploration of how internal law works in state and local governments, in the context of election administration. There is so much to like (lots) about this article, and it is a must-read for scholars of administrative law, election law, and local government law as well as political science and public administration.

In The Internal Law of Democracy, Professor Stack examines how internal administrative law has shaped election administration. After Part I of the article provides a cogent summary of the internal administrative law literature to date, Part II turns to election administration and presents three important case studies: local voting practices in the South during the Jim Crow era, the 2000 Bush-Gore presidential election recount in Florida, and the 2020 COVID-19-related mail-in ballot controversies in Pennsylvania. Through these case studies, Professor Stack effectively illustrates how internal law shapes elections. As he concludes from these case studies, “this internal law made by election officials and administrators to organize and guide their own discretion has determined who votes, how they vote, and whether their votes are counted.” (P. 1711.)

After presenting these case studies, Part III zooms out to document internal law’s status, variety, and sources in state and local election administration as well as how federal law regulates that internal law today. These state and local internal laws range from formal rules to informal guidance, and from state-mandated standards to local on-the-ground, in-the-moment decisions. At the federal and state levels, Professor Stack concludes that “the overall picture is of limited federal oversight and uneven (and often weak) state external checks on the internal law of democracy.” (P. 1689.)

Part IV—perhaps my favorite part—presents Professor Stack’s vision for internal laws governing election administration. He identifies four rule-of-law conditions that should guide a reform agenda for election administration: “internal law must be (1) consistent with external law, (2) public and accessible, (3) presumptively binding on lower-level officials, and (4) justified publicly.” (P. 1698.) He recognizes that this reform agenda is easier said than done, due to the unique circumstances of election administration. Among other things, “election administrators and workers require explicit answers in a time-sensitive and pressured environment,” and “election administration relies heavily on a unique personnel model” of “temporary workers who volunteer or serve for a nominal wage.” (P. 1692-93.) In light of these circumstances, Professor Stack concludes that “an internal law of democracy that prospectively guides the operational choices faced by those who administer elections is a necessary condition for election administration—and can contribute to the public’s perception of election fairness.” (P. 1695.) Part V concludes by addressing some obstacles and objections, including express local preemption to home rule, criminal sanctions for deviation from state election policy, partisan influence, and the potentially “existential threat” of the independent state legislature doctrine.

The Internal Law of Democracy demonstrates the value of administrative law scholars shifting their attention away from the federal bureaucracy and toward state and local government law. In that sense, it reminds me a lot of the terrific scholarship by Miriam Seifter and Maria Ponomarenko, among others. The article also shows the value of the fields of state and local government for administrative law. I wish our fields interacted more; local government law in particular has so much to offer to our field in terms of theory and framing. I hope this article sparks more cross-pollination and interaction between the fields. Administrative law would be better for it.

I feel compelled to flag for the reader that while the body of the article is a must-read, the footnotes are also well worth your time. In his typical style, Professor Stack strives to cite all of the relevant literature, giving credit where it is due and making connections that were not obvious from the prior scholarship cited. This is a real tour de force. And yet it comes as no surprise to any of us in administrative law. Professor Stack is one of the most generous and engaged scholars in the field. He has helped launch many of our academic careers and has been a valuable mentor to even more people, myself included. If there were a ranking of the number of mentions of administrative law scholars in “star footnotes”—where scholars acknowledge those who provided meaningful feedback on earlier drafts of the article—I would be shocked if Professor Stack were not at the very top of that ranking.

Most importantly, I hope scholars of election law and election administration officials themselves give this article a close read. Effective election administration is necessary for a functioning democracy. And internal administrative law is necessary for effective election administration. “Although there is not a simple cure-all to problems with elections,” as Professor Stack concludes, “an internal law that aligns with these legality values promotes clarity, consistency, and nonarbitrary election administration.” (P. 1712.)

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Emily Bremer

How will the recent, significant changes in administrative law doctrine affect on-the-ground administrative activities of longstanding vintage? This question blooms today in a thousand different places, offering administrative lawyers endless opportunity to give that most favored of lawyerly responses: “It depends.” In Agency Amici, an article recently published in U.C. Davis Law Review, Emily Hammond offers a rich and sophisticated analysis of the question as it relates to the age-old practice of administrative agencies filing amicus briefs in ongoing litigation between other parties. The article contributes to the literature on agency amici with empirical evaluation, in-depth case studies, and normative analysis at a moment of transition from the old regime of judicial deference under Chevron and Auer to the new regime under Loper-Bright and Kisor. The result is a rich and fascinating portrait of an established practice that sheds useful light on the possibilities for its future.

An amicus, or “friend of the court,” brief is filed in ongoing litigation by someone who, though not a party to the case, has a strong interest in the issues that will be decided. A federal administrative agency may file such a brief in a case that implicates its statutory responsibilities but does not involve judicial review of the agency’s own action. In these cases, the agency may be able to offer the court a well-informed statutory analysis, as well as practical and regulatory context that the parties to the case may not have the ability or incentive to provide.

Agency Amici begins with a literature review and a comprehensive survey of the administrative law of agency amicus practices. Agencies must have statutory authority to file amicus briefs. The article explains that it is relatively common for Congress to give agencies statutory authority to file amicus briefs in the lower courts. One might expect that such authority would be extended less often to executive branch agencies than to independent agencies. But the analysis does not corroborate that expectation. After surveying this landscape, the article evaluates the tension between these grants of litigating authority and the ever-increasingly assertion of centralized control over agency policymaking, whether through the expansion of the unitary executive theory or the rise of presidential administration. It then evaluates whether agency amicus briefs can help to expand access to justice and how they fare under common procedural expectations for the development of agency policy. Along the latter dimension, amicus briefs are not subject to the same procedural controls as other kinds of agency action, and the article does a wonderful job of exploring how this affects efficiency, expertise, and political legitimacy.

The article’s greatest contribution is its deft analysis of the issue of judicial deference to agency views at this critical moment of inflection as the Supreme Court moves administrative law into a new era. Agencies file amicus briefs in the hopes of influencing how courts interpret statutes or regulations, decide cases, and thereby develop the law. The power of an amicus brief may therefore depend on how much judicial deference it can command. The degree of available deference was potentially quite high under Auer (1997)—which the Court sharply limited in Kisor (2019)—and under Chevron (1984)—which the Court overruled in Loper-Bright (2024). In the wake of these developments, Skidmore (1944) “respect” for an agency’s persuasive and well-informed views (a standard established in a case involving an agency amicus brief!) is poised to become increasingly important.

Agency Amici does a terrific job of explaining these seismic changes in administrative law doctrine, and it offers a typology of agency amicus briefs that is well designed to suggest how amicus briefs can be effective under the new deference regime. The typology identifies a variety of situations in which agencies commonly file amicus briefs, including: (1) shared private and public enforcement responsibilities (Pp. 1714-23); (2) access to courts and hurdles to review (Pp. 1723-26); (3) preemption (Pp. 1727-30); (4) federally funded, state-administered restorative justice programs (Pp. 1730-32); and offering views on another agency’s statutory interpretation in areas of overlapping or shared statutory responsibilities. (Pp. 1732-34.) The typology is enriched and made more instructive by deep dives into individual cases in which agencies have filed amicus briefs. Each of these deep dives includes an accessible description of the case, the legal issue, the agency’s contribution qua amicus, and the court’s decision, including its reaction (if any) to the amicus brief.

The article’s typology facilitates a close analysis that pulls apart strands of legal doctrine that might otherwise be confounding, thus opening a window into how agencies and courts can continue to benefit from agency amici practice in a world of reduced judicial deference. The article concludes that “most agency amici confine themselves to matters squarely within their statutory domains.” (P. 1734.) That is, agencies use statutory authority to file amicus briefs prudently, to address important issues and to communicate views of the law and its underlying policy realities that are grounded in sound reasons and longstanding experience. Although the courts often decide cases in a manner consistent with an agency amici’s views, they rarely engage with—or even acknowledge—the amicus briefs. In fact, judicial engagement seems to be more likely when a court takes a different view of the issue. For these reasons, “how much difference [agency amici] make remains elusive.” (P. 1734.)

The article concludes with a normative analysis that offers potential lessons for both administrations and courts. As to the former, the article concludes that “it is evident that most briefs match expected presidential preferences.” (P. 1735.) This may allay concerns about the relative freedom of agency amicus practices from the formalized process of central executive control. As to the courts, the agencies’ prudent use of amicus briefs may mitigate concerns about their relative lack of procedural control, while reducing the likelihood that reduced judicial deference will meaningfully affect the usefulness of agency amicus briefs going forward. But the analysis also suggests that courts could do better. By engaging more with agency amicus briefs, courts could make their own decisions more transparent and deepen incentives for agencies to develop the kind of stable and well-reasoned positions that have the power to persuade.

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Jodi Short

In Oligarchy, State, and Cryptopia, Julie Cohen lays the groundwork for re-theorizing the administrative state in the age of Trump II, DOGE (otherwise known as the Department of Government Efficiency), and their unparalleled assault on the institutions of government. Before now, generations of deregulatory politics and rhetoric have tended paradoxically to produce more rules rather than less, and they have decidedly not produced any radical restructuring of government regulatory institutions. The settled explanation from scholarship in a variety of fields is that while businesses often spout the rhetoric of deregulation, they actually want—perhaps need—regulation for reasons including competition control, market making, and firm survival and stability. The extensive and unprecedented dismantling of government institutions spearheaded by DOGE radically unsettles those understandings, which begs questions about why this time is different.

Cohen’s article begins to address those questions and, more broadly, sets the terms for future theorizing about administrative law and regulation in a cogent, meticulous, and frankly chilling account of the tech oligarchy and its relationship to, and ambitions for, state power. Cohen starts from the premise that existing theories of administrative law and regulation give too little attention to oligarchy as a phenomenon that shapes the use of state power and regulatory authority in ways that go beyond the familiar industry capture story. Based on influential research in political science, she defines oligarchy as “a particular form of concentrated power based on the accumulation of extreme material wealth and the use of such wealth to obtain systemic, inescapable advantage within a political system or community” (P. 6). Cohen argues that the principal difference between tech oligarchs and capitalist oligarchs of yore is that the former are becoming increasingly unwilling to submit to a rule-of-law system to advance and protect their dominance. Instead, tech oligarchs increasingly seek to move towards a system in which they displace the state and exercise coercive power directly—including by individual fiat.

Cohen explains how the political economy of informational capitalism enables this gambit. Her account starts with the infrastructural nature of information technology: the dominant tech platform firms do not merely provide essential products or services; they “have become essential infrastructures for an increasingly wide variety of computing, communication and control-based functions that, in turn, now underlie and infuse every conceivable domain of human and social activity” (P. 15). This powerful techno-social position provides tech oligarchs with the means to multiply their extraordinary personal wealth and to control communications about issues that concern them. Tech oligarchs have also managed to untether themselves from traditional channels of market and legal accountability. They have largely consolidated control of their firms, adapting corporate governance structures to advance their personal aims and evade market accountability mechanisms such as share price and stockholder discipline—for instance, by keeping their companies private or adopting dual-class ownership structures. They have also engaged in “flamboyant defiance” of the law (P. 18), often with impunity, in part by exploiting the states’ deep dependence on the operational and surveillance services tech platform companies provide.

Oligarchs always, predictably, use their structural advantages to amass ever greater wealth, and certainly tech oligarchs have done so through traditional means such as lucrative government contracts and strategic regulatory capture. But Cohen argues that tech oligarchs are distinct from their capitalist predecessors in their “increasingly profound disenchantment with the prevailing terms of the state-oligarch relationship” (P. 22) which expects oligarchs to surrender coercive power to a rule-of-law system administered by the state. While their capitalist predecessors settled for strategies to capture state regulatory institutions for their advantage, tech oligarchs are pursuing a much more ambitious strategy to re-structure the terms of the state-oligarch relationship entirely.

Cohen explores two key channels through which this relationship is being renegotiated: finance and public administration. In the financial domain, tech oligarchs are working to break states’ power over exchange value through cryptocurrency systems for decentralized economic exchange. In the domain of public administration, the second Trump administration has empowered tech oligarchs to attack the state from the inside through DOGE. Cohen trenchantly observes that the unprecedented and ultra vires acts of DOGE are not merely “neoliberal downsizing on steroids” (P. 28). Rather, “Musk and his team of loyal coders are laying the groundwork for a far more durable realignment in the oligarchy-state relationship” (P. 28). Specifically, Cohen describes DOGE as a vehicle to transform “the federal government and its constituent institutions and processes into forms more amenable to oligarchic direction” (P. 30). While it remains to be seen exactly how DOGE will ultimately reconfigure regulatory institutions and operations, Cohen posits that the realignment will be guided by theories influential among the tech elite that envision massive ideological and personnel purges of government employees, yielding to unencumbered control by the tech oligarchy of whatever government institutions survive.

One of Cohen’s signal contributions is to situate this account of oligarchy within a techno-futurist ideology that supplies moral justifications for tech oligarchs’ dominance and their drive to replace existing state institutions and social settlements. Many prominent tech oligarchs adhere to a philosophy known as Effective Altruism, which holds that “amassing great wealth is a necessary first step to achieving great and long-lasting social change” (P. 21). This philosophy not only tolerates but celebrates grossly unequal distributions of material resources as a “precondition to achieving long-term human betterment” (P. 21). In this epistemology, “human betterment” is achieved not through collective, democratic deliberation and institutions, but rather through the use of “cutting edge computational technologies to radically alter a wide range of human and social processes in the services of utopian goals” (P. 37). It follows that all resources should be devoted to developing such technologies, and it is wasteful to devote resources to ameliorate immediate social ills such as homelessness or to redistribute resources to populations harmed by such short-term ills. So, for instance, there is “[n]o need to impose regulatory measures to mitigate climate change; invent [artificial general intelligence] and it will solve climate change” (p. 39). And if it doesn’t, and instead climate change ravages the earth, by that time the tech oligarchs will have decamped to Mars.

This epistemology leads tech oligarchs to view predictable and historically unremarkable attempts to regulate them—for instance, through antitrust law, privacy protections, and precautionary risk regulation—not merely as inhibiting their business interests, but as “existential threats to a brightly beckoning, data-driven future” (P. 21). Unlike other corporate titans who simply resist or flout regulation, tech oligarchs “fancy themselves misunderstood idealists, devoted to improving the human condition via the inevitable forward march of technological progress” (P. 20) and they view state regulatory demands as misguided and immoral attempts to impede human progress.

This all raises serious questions about the capacity and role of administrative law in judicial challenges to the tech oligarchy’s administrative machinations. Administrative law is an outgrowth of particular social and political settlements about the relationship between state and market. How will it respond to the great unsettling sought by the tech oligarchy? Will it, too, be transformed? Will tech oligarchs be able to flout administrative law as freely as they do many other laws? If not, what is it about the qualities and context of administrative law that will save it from irrelevance?

Cohen’s account also highlights how moral theory can be used to shape and justify administration. In my article, The Moral Turn in Administrative Law, I observe a growing constellation of theories that explicitly invoke substantive moral values as the basis for administrative law and policy, cutting against the field’s tendency toward proceduralism, formalism, and technocracy. Tech-futurist ideology is a provocative entry into conversations about moral administration. In a recent analysis, my co-authors and I show that the mainstream media has paid little attention to tech oligarchs’ ideologies in coverage of tech platform regulation. At the time, we interpreted this absence of coverage as indicative of broad public disinterest in or even rejection of these ideologies, but Cohen’s article suggests that they have flourished out of the public spotlight, and they continue to motivate the behavior of powerful actors irrespective of their public appeal. By foregrounding the values underlying DOGE’s project, Cohen subjects the tech oligarchy’s moral code to the public scrutiny it deserves and invites a broader dialogue about the moral aims and imperatives of administration.

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