Week 5-Explore the Impact of Administrative Accountability and Week 6 - Assess the Oversight Functions of Administrative Rulemaking

Title:

STAYING AGENCY RULES: CONSTITUTIONAL STRUCTURE AND RULE OF LAW IN THE ADMINISTRATIVE

STATE.

Authors:

CASS, RONALD A.

Source:

Administrative Law Review. Spring2017, Vol. 69 Issue 2, p225-258. 34p.

Document Type:

Article

Subject Terms:

Rule of law

Administrative law -- United States

Constitutional law

Courts

United States -- Politics & government

NAICS/Industry Codes:

922110 Courts

Abstract:

Today, administrative rules are far more numerous than the laws enacted by Congress, cover far more

pages in the relevant legal codes, account for far more regulatory commands, and have profound effects

on American economy and society. Although administrative rules can provide substantial public benefit,

legal constraints on the scope of administrative authority and on the processes by which it is employed

provide critical protections. Courts, when asked, can review the legality of these rules; courts also can

stay rules' effectiveness pending review, both preserving the status quo and reducing costs entailed by

rules of questionable legality. Holding rules in abeyance until they can be reviewed often is the best --

and at times the only -- vehicle for guaranteeing a meaningful review. Canons of deference to both

administrative and judicial discretion should be revisited in light of the vast reach of federal

administrative regulation, the concentrated impact regulations often have on specific individuals and

entities, and the frequent experience that staying rules' effects is critical to limiting administrative

adventurism and avoiding irreparable harm. Greater attention to the harm from failure to stay

questionable rules can protect rule-of-law values, preserve liberties that were central to our

constitutional design, and provide space for serious evaluation of the rules' consistency with law.

[ABSTRACT FROM AUTHOR]

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Full Text Word Count:

14481

ISSN:

0001-8368

Accession Number:

126769026

Database:

Business Source Complete

Section:

ARTICLES

STAYING AGENCY RULES: CONSTITUTIONAL STRUCTURE AND RULE OF LAW IN THE ADMINISTRATIVE

STATE

Today, administrative rules are far more numerous than the laws enacted by Congress, cover far more

pages in the relevant legal codes, account for far more regulatory commands, and have profound effects

on American economy and society. Although administrative rules can provide substantial public benefit,

legal constraints on the scope of administrative authority and on the processes by which it is employed

provide critical protections. Courts, when asked, can review the legality of these rules; courts also can

stay rules' effectiveness pending review, both preserving the status quo and reducing costs entailed by

rules of questionable legality. Holding rules in abeyance until they can be reviewed often is the best --

and at times the only -- vehicle for guaranteeing a meaningful review. Canons of deference to both

administrative and judicial discretion should be revisited in light of the vast reach of federal

administrative regulation, the concentrated impact regulations often have on specific individuals and

entities, and the frequent experience that staying rules' effects is critical to limiting administrative

adventurism and avoiding irreparable harm. Greater attention to the harm from failure to stay

questionable rules can protect rule-of-law values, preserve liberties that were central to our

constitutional design, and provide space for serious evaluation of the rules' consistency with law.

INTRODUCTION -- JUDGING STAYS: FROM PRIVATE PRIVILEGE TO THE MODERN ADMINISTRATIVE STATE

In the span of one month in the winter of 2016, justices of the U.S. Supreme Court took divergent

positions on applications to stay agency rules pending appeal of the rules to the courts. In February, the

Court, by a 5-4 vote, decided to stay the EPA's so-called "Clean Power Plan," preventing the regulation

adopted to promote the agency's plan from taking effect while the courts reviewed its legality.[ 1] Less

than one month later, Chief Justice Roberts, who voted with the majority in the Clean Power matter

after referring that matter to the full Court, decided not to refer another application for stay to the

Court, instead denying a stay of the EPA's Mercury and Air Toxics Standards (MATS) rule.[2 ]

The standards used by the courts to decide whether to stay an administrative rule are matters of

enormous importance, both practically and doctrinally. Traditionally, the decision to stay or not stay a

rule was treated, as other matters of equitable relief were, as a determination within the discretion of

the judge.[ 3] Unlike questions that historically have been seen as issues "of law," questions that used to

be presented to courts of equity were not matters of entitlement but of privilege.[ 4] While standards

guided the exercise of discretion by the judge, higher courts routinely deferred to the equity court's

decision.[ 5]

Both the content of temporary orders seeking to preserve the status quo in private actions and routine

deference to the trial-level judge make sense in this context. When remedies such as stays and

temporary injunctions are used to prevent ongoing harm or new harm from private conduct for which

compensation after the fact would be unlikely or unavailing, the range of highly individualized, fact-

based considerations central to these conclusions generally are the kind of matters properly left to the

judicial officer most familiar with the case, subject to deferential appellate review.[ 6] Should one

spouse, for example, be ordered not to abandon a house during divorce proceedings (a move that could

reduce the value of marital assets and prejudice aspects of the divorce decree)? Should the other

spouse be required to maintain a payment account for the mortgage (again, a decision with implications

for the value of marital assets)? Should one partner in a small business be enjoined from setting up a

competing venture or selling an asset that is critical to the venture's success (steps that, once taken,

have effects on the business's value that cannot readily be undone)?

These are hardly matters that rise to the level of broad public importance, nor are they apt to turn on

legal principles that are seriously contested. What judicial action will best protect the rights of all parties

in such cases turns on particularized judgments about individual risks and about particular individuals'

likely behavior. Yet the typical presumption in a range of private actions also favors routine use of

temporary orders to prevent the sort of changes that could reduce one party's ability to satisfy

legitimate claims of the opposing party.[ 7]

The two EPA cases, however, demonstrate the different setting in which issues related to stays

commonly arise today and the greater importance of protecting against harms associated with

departure from the status quo. The modern administrative state is characterized not only by expansive

lawmaking, but also by extraordinarily expansive lawmaking by unelected administrative officials.[ 8]

Congressional lawmaking has produced a complex array of statutes covering more than 20,000 pages of

the United States Code.[ 9] As daunting as it is to know what these laws command, it is far more

daunting to master the mass of administrative rules, which cover something on the order of nine to ten

times as many pages of the Code of Federal Regulations.[ 10] While many rules consist of relatively

minor, technical commands, others are as sweeping, intrusive, and consequential as any

congressionally-passed law.

Allowing these rules to apply immediately often gives the individuals and entities that are subject to

them a choice between investing in costly compliance or risking serious sanctions, including potential

criminal liability; to the extent that this induces compliance with rules that were not well-grounded in

law, courts' ability to provide an effective check on administrative officials can be substantially eroded.

Obviously, expensive, time-consuming litigation contesting the legality of an administrative decision is a

far less attractive option if the only remedy at the end of the case is a Pyrrhic declaration of victory.

Once a rule's targets decide that the risk of sanctions requires immediate compliance, the only "remedy"

a court can offer is recognition that the litigants need not have spent the millions already invested in

complying with an illegal rule, were under no lawful obligation to have undertaken economically

damaging modifications of their operations, or need not have made other disruptive changes to their

lives. However satisfying it is to hear someone say, "you're right, the barn door should have stayed

shut," it's more rewarding to get confirmation while the horse is still inside.

Reducing incentives to challenge unlawful official action in turn expands the probability that officials will

exceed their authority, both in what they do and how they do it -- as with any human endeavor,

removing a constraint on misbehavior (intentional or not) almost axiomatically leads to more

misbehavior, something every parent knows. If agency officials already have incentives to push beyond

the boundaries of their legal mandates, to overregulate, to impose restrictions on private conduct that is

not sanctioned by -- much less commanded by -- statute, the absence of meaningful judicial review to

constrain those tendencies will increase officials' willingness to engage in this behavior.[ 11]

Of course, the answer is not to impose unwise constraints. If a rule contains mandates essential to

protection of health and safety, delaying its implementation also could have serious, harmful

consequences.[ 12] As with a regime that lets rules almost always take effect, automatically staying all

rules could have serious, and at times seriously harmful, effects.

In this context, the courts must take a hard look at the way the private-privilege approach to issuing

stays affects the legal and practical landscape when applied to government regulation. Continuing to

treat requests for stays as matters of largely unreviewable discretion for individual judges has important

consequences for the scope and locus of government power as well as for the rule of law.

I. STARTING WITH STRUCTURE

When the framers of the American Constitution were writing the document that would define successful

government design -- an experiment in structuring government power that produced a combination of

liberty, security, and economic progress that has been the envy of the world -- they were pursuing two

overarching goals. They sought to create a set of government structures that would enable the new

nation to achieve ends that could be attained only if the national government were given power to

pursue goals that require uniform rules or united efforts -- providing for the common defense, for

example, or for the unimpeded flow of commerce throughout the nation.[ 13] The framers also

endeavored to divide and check power in a manner that would constrain governmental discretion and

inhibit the use of power to reduce liberty or entrench the preferences of a transient majority.[ 14]

While the goal of more effective national government was a response to perceived defects in the

Articles of Confederation, protection of liberty was seen as the more important goal, the essence of any

good constitution, and the major benefit of the rule of law.[ 15] One feature after another of the

Constitution was directed primarily at assuring accomplishment of that goal. Major structural features --

such as the division of power among three branches of government, each vested with responsibility for

one type of authority; the assignment of powers to each branch that provided checks against excesses

of the other branches; the division of the legislature into two houses composed of members elected

from different constituencies at different times, for different terms of office, and by different means --

all of these provisions in the Constitution were designed to prevent the exercise of un-cabined

discretion by particular government officials and official bodies.[ 16]

Even the most casual reading of The Federalist Papers underscores the importance of the Constitution's

structural features as limitations on unchecked power and protections of liberty. The writings by

Alexander Hamilton, John Jay, and James Madison focus almost entirely on these themes. Madison, for

example, cautioned that "the public good, the real welfare of the great body of the people is the

supreme object to be pursued; and … no form of government whatever has any other value than as it

may be fitted for the attainment of this object."[ 17] He observed that the most dangerous failing in a

Constitution -- the risk to liberty most critical to be minimized -- is the accumulation of power in one set

of hands or one body.[ 18]

Madison first applied this maxim to the separation of power between state and federal governments,

exploring the Constitution's division of authority between the two sets of governments, the basis for

allocation of powers to one or the other, and the reasons for supposing that the power of the states

would predominate.[ 19] Among other things, the states are more numerous, closer to the individual

citizens, and divided in their interests on many matters -- which provides greater natural affinity of

citizen to government than at the federal level while also reducing the prospect of a unified government

power being brought to bear against individual liberties.[ 20] Moreover, the state governments were

given several means for asserting authority over federal government officials and bodies, further

checking the risk that the national government would invade state prerogatives without the support of

the states.[ 21]

That was not enough, however, as the national government's power, even once marked as limited and

in many respects subservient to state powers, required further division to prevent tyranny. Madison

famously declared, "No political truth is certainly of greater intrinsic value or is stamped with the

authority of more enlightened patrons … than" the maxim "that the legislative, executive and judicial

departments ought to be separate and distinct."[ 22] He explained at length how the Constitution

embraces and implements that maxim.[ 23]

More than merely separating the three major types of government power among three branches of the

national government, the Constitution provides a variety of mechanisms for assuring that none of the

branches of government can impose its will upon another (and by doing that, effectively arrogate to

itself the other's power).[ 24] This protects individuals against invasions of their liberty by making the

branches guardians of their own power and making effective government action turn on cooperation

among the different branches with different powers.[ 25] Again, Madison makes the point succinctly

about the need not merely to design a government of separate powers but to incorporate in that design

features that allow it to sustain itself:

Power is of an encroaching nature, and … it ought to be effectually restrained from passing the limits

assigned to it. After discriminating therefore in theory, the several classes of power, as they may in their

nature be legislative, executive, or judiciary; the next and most difficult task, is to provide some practical

security for each against the invasion of the others. What this security ought to be, is the great problem

to be solved.[ 26]

Combatting efforts to extend the power of one branch of government into matters committed to a

different branch requires constant effort. The branch the framers most feared was the legislative

branch, which Madison characterized as "everywhere extending the sphere of its activity, and drawing

all power into its impetuous vortex."[ 27] True to Madison's fears, the legislative branch has shown

considerable ingenuity at finding ways to expand power and diminish protections for liberty associated

with structural provisions in the Constitution.[ 28] The executive branch also has engaged in behavior

that strains the bounds of its authority, endeavoring to expand its power into matters reserved for the

legislative or judicial branches,[ 29] but more often expansion of executive authority has occurred at the

direction of the legislative branch.[ 30]

This apparent contradiction disappears when one understands that "the grant of power from one entity

to another is never an act of pure generosity; the grantor invariably gains something from the grant."[31

]Simply put, legislators gain release from accountability and also secure a greater influence for the most

intensely interested among them when they circumvent cumbersome restrictions on legislating,

including requirements for bicameral majorities and presentment to the President.[ 32] The whole point

of the Constitution's creation of separate Houses of Congress with different numbers of members,

differently chosen from different constituencies at different times for different terms of office, and of

the need for majorities of both Houses plus the President to agree on legislation (or supermajorities of

both Houses after a presidential veto), was to make it difficult to enact laws.[ 33] So long as laws are

needed to impose government controls on the private behavior of individuals and entities, liberty is

likely to enjoy considerable protection against abuse.

II. DELEGATION OF DISCRETIONARY AUTHORITY: ORIGINAL PRACTICE AND UNDERSTANDING

Unfortunately, the predicate of the sentence ending the previous section of this paper -- that liberty will

be protected "so long as laws are needed to impose government controls on the private behavior of

individuals and entities" -- is no longer realistic. Despite the vesting clause of Article I of the Constitution,

declaring that, "All legislative powers herein granted shall be vested in a Congress of the United States,"[

34] much of the national government's lawmaking power now effectively rests in administrators' hands.

Administrative officers inevitably enjoy some scope for deciding how to implement instructions

contained in congressionally-enacted law. That has been true since the beginning of the Republic. But

the existence of a degree of discretion in implementing the law is not the same as the existence of broad

policymaking discretion in making law.[ 35] Administrative discretion involves the concrete application

of a command in the context of a matter that does not implicate major choices for society or impose

special burdens on private behavior; the discretion associated with lawmaking comprehends (or, at

least, can comprehend) important choices on the regulation of society at large, choices not confined to

any restricted set apart from limits on the power of the government that makes the law.[36 ]The same

point applies to the distinction between judicial interpretation of law, including legal mandates

contained in the Constitution, and the legislative function of making law. Courts invariably exercise a

degree of discretion in interpreting law, but the interpretive role, properly conceived, is both limited in

nature and falls within the judicial power only insofar as it is necessary to decide cases and controversies

properly before the courts.[ 37]

Although the division between the legislative and executive spheres (as with the legislative and judicial

functions) is not susceptible to a bright-line test, the separation of legislative and executive powers has

been recognized from the start of the Republic as critical to the preservation of liberty and of the rule of

law.[ 38] Maintenance of separate powers was sufficiently critical that the framers repeatedly took up

the question of what combination and distribution of powers would best serve to protect against the

invasion by one branch of the power assigned to another.[ 39] The Constitution they gave us very

consciously divided what its framers saw as quintessentially executive authority from legislative

authority and further subdivided legislative power among different officials to assure that this power --

which they saw as the most expansive, least limitable by express command, and most dangerous to

liberty -- was checked from within the legislative process as well as from outside it, so far as practicable.[

40]

The early practice of the nation was to permit Congress to authorize executive (or, at times, judicial)

action that consciously permitted a degree of discretion but limited the discretion only to relatively

minor matters pertaining to topics within the other branch's domain.[ 41] For example, early Congresses

authorized executive officials to set the exact boundaries for the nation's capital city, but only after

determining the location with sufficient specificity to resolve the political concerns over its placement.[

42] Similarly, Congress authorized presidential decisions on matters respecting veterans' benefits, but

only on relatively modest process issues and only after, again, resolving the contested political question

about these benefits.[ 43] The President was also authorized to make determinations on imposition of

embargoes, and was given a broader scope of discretion than in most other authorizations.[ 44] This

authority, however, was limited to instances in which Congress was not in session and expired within 15

days of the commencement of the next congressional session.[ 45] And, critically, it also concerned a

matter that was within the President's core competences over deployment of military assets as

Commander-in-Chief. Congress similarly used the Judiciary Act of 1789 to grant discretion to a

coordinate branch of government on a matter obviously within that branch's domain, by giving federal

courts authority to make "all necessary rules for the orderly conducting of business" in the courts.[ 46]

Despite some argument over the way judicially-deployed constitutional constraints on delegation

actually worked, the Constitution's structure and early practices -- shaped by men who had participated

in its framing -- provide strong support for the proposition that the framers understood the Constitution

to have separated legislative power from administrative and judicial power and that the early

Congresses respected that separation.[47 ]Resolving a challenge to part of the assignment of authority

to the courts over particular issues of procedure, Chief Justice Marshall in Wayman v. Southard[ 48]

explained the matter in these terms:

It will not be contended that Congress can delegate to the courts or to any other tribunals powers which

are strictly and exclusively legislative.

But Congress may certainly delegate to others, powers which the legislature may rightfully exercise

itself. Without going further for examples, we will take that the legality of which the counsel for the

defendants admit. The 17th section of the Judiciary Act and the 7 th section of the [Process Act]

empower the courts respectively to regulate their practice. It certainly will not be contended that this

might not be done by Congress. The courts, for example, may make rules directing the returning of writs

and processes, the filing of declarations and other pleadings, and other things of the same description. It

will not be contended that these things might not be done by the legislature without the intervention of

the courts, yet it is not alleged that the power may not be conferred on the Judicial Department.

The line has not been exactly drawn which separates those important subjects which must be entirely

regulated by the legislature itself from those of less interest in which a general provision may be made

and power given to those who are to act under such general provisions to fill up the details.[ 49]

The courts did not always draw a clear line between "those important subjects which must be entirely

regulated by the legislature itself from those of less interest in which a general provision may be made

and power given to those who are to act under such general provisions to fill up the details," but until

the end of the 19th Century at least the understanding of the federal courts -- and, just as important, of

the other branches of the government -- generally was congruent with that test.[ 50]

III. NON-DELEGATION'S DEMISE, ADMINISTRATIVE LAWMAKING'S RISE

The consensus understanding of limitations on the authority that could be assigned to executive officers

began to change when constraints on the operation of government started to weaken. The

transformation of the understanding can be described as taking place in six steps.

Step One

First, start with the Supreme Court's decision in Field v. Clark[ 51] at the end of the 19th Century. Both

Justice Harlan's opinion for the majority and Justice Lamar's dissenting opinion articulated strong

versions of the doctrine that federal legislative power is vested in the Congress and cannot be delegated

to the executive.[ 52] The majority's test for what constituted a delegation of legislative power was not

so carefully constructed as Chief Justice Marshall's articulation in Wayman, and its application of the test

was rightly criticized by the dissent for permitting too great a scope for executive discretion.[ 53] Still,

the justices plainly understood the structural importance of separating the spheres of legislative and

executive power.

Step Two

Thirty-six years later, disposing of a non-delegation challenge in J. W. Hampton, Jr., & Co. v. United

States,[ 54] the executive-friendly Supreme Court of former Chief Executive, then Chief Justice, William

Howard Taft showed less appreciation for limiting the discretionary power of the executive branch.

Giving voice to some of the ideas of the Progressive Era respecting the need to have a government

staffed with experts in various matters of public policy and to have government function efficiently in

carrying out its missions, the Court's Hampton opinion stressed the existence of "an intelligible

principle" to guide the exercise of administrative discretion, finding that guidance was sufficient to

answer constitutional objections.[ 55] Far from declaring that matters of great importance must be

decided through constitutionally-prescribed processes for legislating, Chief Justice Taft and the Hampton

Court announced that a particular matter's importance was a reason for deputizing administrative

officials (who have more expertise or access to more or better information) to decide what to do.[ 56]

The decision would be subject to general guidance from the legislature, but the important tasks of

elaborating, refining, and applying that guidance would fall to the administrators.

Step Three

The third step was a vast expansion of government regulation of the economy and also of many aspects

of health, safety, and personal behavior (retirement savings, family and child-raising decisions, and

much more) that previously had been thought beyond the ambit of federal power.[ 57] Much of this was

the product of Franklin Delano Roosevelt's New Deal, though significant expansions in regulation took

place under Presidents Lyndon Johnson, Richard Nixon, and Barack Obama.[ 58] This explosion in

regulation was not confined to congressionally-enacted laws. Instead, the foundational laws created a

network of new administrative entities and programs, deputizing officials who were not elected to

Congress (or, indeed, elected at all) to make decisions, often by issuing law-like rules. The result was not

simply a collection of "alphabet agencies" -- CAB, FCC, SEC, SSA, FDIC, NLRB, FHA, OSHA, EPA, and

dozens more -- but an almost unimaginable increase in the web of rules and regulations that now bind

individuals in aspects of life long thought either beyond the reach of government or plainly reserved to

state, not federal, control.[ 59]

Step Four

The expansion of federal regulatory authority, especially in its early phase, led to the fourth step in this

process. Challenges to the assertion of authority over areas previously understood to be beyond the

scope of Congress's constitutionally limited powers and to the devolution of authority to officials who

were understood not to be empowered to make important decisions on rules regulating private conduct

and individual rights elicited push-back from the courts. The Supreme Court, for example, found

expansion of federal power over the terms of employment and over the compulsory provision of

retirement and pension funding -- even when ostensibly functioning only as a limitation on the

movement of goods in interstate commerce or on the operation of interstate transportation -- to exceed

Congress's constitutional authority over interstate commerce.[ 60] The Court also famously struck down

legislation in the Schechter Poultry and Panama Refining cases on the ground that the laws at issue gave

such broad authority to administrative and private decisionmakers as to essentially delegate legislative

power that the Constitution vested in Congress.[ 61]

The decisions, though treated today by most of the academic community as eccentricities of a

conservative, anti-New Deal Court, were in line with prior decisions dating back to Wayman and before.

The Court's early New Deal era decisions recognized that deputizing others to implement legislative

schemes could be done only when the Congress provided suitable direction, and the precedents

discussed by the Court demonstrated that, to be constitutionally acceptable, the subjects of

discretionary authority had to fit within the traditional core of executive, not legislative, competence.[

62]

Step Five

Fifth, judicial application of constitutional precedents led to an intense campaign designed to influence

judges and to implement reforms that would reverse decisions standing in the way of an expanded

scope for both the federal government and its executive officials. Roosevelt's Court-packing plan was

the most visible part of this campaign, but it also encompassed broader efforts to sway academic and

public opinion.[63 ]Whether attributable to this campaign or to other sources (such as the natural

evolution of some justices' thinking about constitutional rules),[ 64] the end result was a near-complete

collapse of doctrines implementing limitations on federal power and on the assignment of important

aspects of legislative authority to administrative officials.[ 65]

The Supreme Court upheld legislation that expansively stretched the definition of interstate commerce

(with respect to both the substance of the term and its intrusion into what is plainly intrastate activity)

in decisions such as West Coast Hotel v. Parrish,[ 66] Wickard v. Filburn,[ 61] and more recently, Perez v.

United States.[ 68] Similarly, the Court rejected delegation doctrine challenges to exceptionally vague

assignments of decisionmaking authority to administrators. For example, in National Broadcasting, Inc.

v. United States,[69 ]the Court sustained administrative authority to regulate a variety of private

business relationships connected to broadcasting (limited only by the instruction to make decisions to

serve "the public interest, convenience, and necessity."[ 70] And in Yakus v. United States,[ 11] the Court

permitted the Administrator of the Office of Price Administration to set prices for a wide array of

products at levels the Administrator deemed to be "generally fair and equitable" and appropriate to

prevent "excessive prices."[ 72] Following the National Broadcasting and Yakus decisions, the Supreme

Court has been unwilling to strike down even the vaguest instruction, including those authorizing (or

subsequently deemed to have authorized) intrusive regulation of private conduct not obviously subject

to government control.[ 73]

Compounding the abdication of constitutional constraints on administrative power, courts expanded the

scope of deference to administrative decisions under the aegis of Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc.[ 74] Initially structured (in keeping with prior law) as a canon of

statutory construction to frame the scope of discretion given to administrators under particular

statutory commands, Chevron became the banner under which judges selectively allowed

administrators to interpret legislative language, including sometimes reading the law creatively and

unpredictably.[ 75] Although judicial deference to administrative decisions on matters properly within

the administrators' purview and actually committed to the administrators' discretion certainly is

defensible, deference to interpretation of law is an entirely different matter.[ 76]

Step Six

The final step in the decline of limits on delegation of legislative power to administrators is the further

expansion of administrators' exercise of expansive authority in the wake of the change in legal

doctrines.[ 77] This step goes beyond the generation of a mass of regulatory rules that fill hundreds of

thousands of pages in the Code of Federal Regulations and include thousands of provisions that

potentially trigger criminal sanctions on individuals and entities that disobey these administrative fiats.[

78] The change that has come about in part as a consequence of the earlier steps creates a ratchet

effect that exacerbates the shift of power to administrators.

As courts became progressively less willing to rein in administrative exercises of broad power over

private conduct, both legislators and administrators have adjusted, largely through greater acceptance

of and assertion of administrative regulatory authority. Agencies have warmed to the freedom from

legislative control that comes through vaguely framed legislative instructions (often contained in

extremely long, complex statutes), claiming new power over matters long thought to be beyond their

purview. The FCC, for example, extended its legislatively conferred authority over broadcasting first to

cable television (a medium of communication that offered a solution to the perceived problem of

channel scarcity)[ 79] and then to the Internet (which vastly increased options for communication

outside the control of traditional communications businesses).[ 80] In the same vein, the FDA discovered

that it had a hitherto unknown -- in fact, often denied -- power to regulate tobacco products,[ 81] and

the EPA (in concert with judicial reinterpretation of its governing charter) found that it had authority to

police global climate change.[ 82] Even more troubling, Congress has abandoned yet another

constitutional responsibility that gave it control over executive power, effectively granting agencies such

as the Consumer Financial Protection Board (CFPB) authority to fund themselves through an

administrative taxing power.[ 83]

Not all of the examples above came after the full flowering of the most explicit judicial deference to

agency decisions on matters traditionally conceded to be within the purview of the judiciary, not

executive officers. But they reflect the demise of constraints of many sorts on expansive administrative

discretion. In the end -- after the last of the steps in the process of political decisionmaking and judicial

interpretation summarized above -- the carefully crafted constitutional structure that was designed to

constrain unwarranted, unchecked official discretion has significantly unraveled.

IV. STAYING THE COURSE? EQUITABLE REMEDIES, EVOLVING STANDARDS, AND JUDICIAL DISCRETION

The story told above, exposing the demise, or at least dramatic weakening, of many of the constraints

on unilateral official action contained in the Constitution has powerful implications for the way courts

should treat applications for stays of administrative decisions. The initial approach to staying legal

proceedings or other actions was rooted in equitable principles that were compatible with modest

assumptions about the function of the challenged actions themselves.[ 84] When those assumptions no

longer apply, a different approach is required. The starting point, however, is understanding a system

that is generally supportive of stays, based on considerations that have inclined the exercise of equity to

support interests that are apt to be harmed by alterations of the status quo or by potential violations of

individual rights that are not well-protected by damages remedies.

Equitable authority historically was separate from legal authority, both in the locus of the power and the

nature of the power exercised.[ 85] Equity was the province of different officials than law, beginning as

the prerogative of kings to dispense justice outside of law and evolving into a supplemental legal form.

The primary difference between the two legal forms (aside from the identity of the decisionmaker) was

the level of discretion accorded. While judges of the law courts were bound by strict rules and forms of

proceeding, those wielding power on equitable ground -- after the king, the Lord Chancellor in England

and courts of chancery in other progeny of the English legal system (including America's states) -- had a

more general mandate to prevent injustice within the confines of certain rules.[ 86] In large measure,

equity provided remedies where law -- understood as a system of fixed rules and binding, though

evolving, precedents -- was inadequate.

Often, the inadequacy of law flowed from difficulty of crafting rules that could respond to the complex

nature of different considerations relevant to resolving a dispute or to preserving a state of affairs that

would provide a reasonable chance at a just resolution.[ 87] The more numerous, interrelated, complex,

and fact-bound the considerations relevant to a decision, the greater the difficulty of crafting a

meaningfully binding and predictable rule to guide judges.[ 88] Yet, given the concerns over risks of

judicial license -- risks heightened by the retrospective nature of judicial decisions and the potentially

draconian penalties that sometimes accompanied legal determinations -- it long has been a tenet of

thoughtful commentary on law that judges should be bound down by rules.[ 89]

In keeping with that instinct, part of the history of the evolution of equity and its ultimate merger with

law courts in most jurisdictions has been the gradual increase in legal constraints on equity's exercise.

The rise of rules to guide decisions on equitable remedies and to channel discretion still enjoyed by

equity's decisionmakers gradually narrowed the distinction between the two branches of law, though

not entirely abolishing it even today, especially in the distinctive remedies associated with equity.[ 90]

The closer the two branches came to resemble one another and the more legal rules were identified

with all forms of judicially-granted relief, the more exceptional were some descriptions given to

equitable remedies. Recently, for example, a quite restrictive formulation of the requirements for

injunctive relief was given in the U.S. Supreme Court's decision in eBay Inc. v. MercExchange, L.L.C.[ 91]

The eBay Court explained both that any demand for an injunction is to be judged according to equitable

principles (regardless of the nature of the legal claim of right) and that the hurdle to issuing an

injunction is substantial:

According to well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy

a four-factor test before a court may grant such relief. A plaintiff must demonstrate: ( 1) that it has

suffered an irreparable injury; ( 2) that remedies available at law, such as monetary damages, are

inadequate to compensate for that injury; ( 3) that, considering the balance of hardships between the

plaintiff and defendant, a remedy in equity is warranted; and ( 4) that the public interest would not be

disserved by a permanent injunction… . The decision to grant or deny permanent injunctive relief is an

act of equitable discretion by the district court, reviewable on appeal for abuse of discretion.[ 92]

The two parts of the quotation above, suggesting a strict legal test for injunctive relief but allowing that

application of the test is within the discretion of the lower court judge, reflect the tension between

equity's heritage and law's fundamental imperative.

The first part of the quotation, giving what is known as the eBay test for injunctive relief, is at least

arguably misleading as a statement of precedent and practice.[ 93] It is noteworthy, among other things,

that seven of the nine justices expressed concern about either the scope of the test itself or its

overbroad application in the context that gave rise to the eBay case (patent litigation).[ 94]

Among the concerns with the eBay test, the remedy sought in eBay is a traditional remedy for violation

of property rights and in patent cases long has been the primary means for enforcing those rights.

Intended or not, eBay's four-factor test reads as if injunctions to enforce property rights are exceptional

or at least questionable remedies.[ 95] That would be both at odds with the history of specific injunction

remedies for property violations and especially with the history of enforcement of intellectual property

rights, which can be a particularly fragile set of rights (an understanding that has supported a large part

of the argument for strong protections for them).[ 96] Nonetheless, the eBay test does capture aspects

of the impetus to legalize equitable practice and, in a very short time, has had a powerful impact on the

way many observers and judges conceive the requisites for injunctive relief.[ 97]

Considerations similar to those identified as relevant to permanent injunctions were articulated in

decisions respecting preliminary (or temporary) injunctions, although with differing emphasis.[ 98] In

particular, preliminary injunction decisions, which often involved staying a proceeding or postponing the

effect of a decision pending the outcome of further proceedings, gave greater emphasis to preserving

the status quo. That emphasis frequently (but not always) was coupled with the question whether

permitting a change in the status quo would inflict irreparable harm on the party seeking an injunction.[

99] The most important difference between the tests for permanent and preliminary injunctions has

been that the preliminary injunction often was available on a lesser showing of threatened harm -- after

all, the preliminary injunction by its very nature is temporary, so the cost imposed by virtue of such an

injunction is apt in most circumstances to be more modest.[ 100]

V. WHEN TO STAY: PROTECTING RIGHTS IN THE MODERN ADMINISTRATIVE STATE

A. Applying Traditional Principles to Stay Applications

Requests to stay agency action are pleas for temporary injunctions designed to preserve the status quo.

Traditional equitable principles set out above would support stays in settings where the costs of moving

from the status quo are large, and the prospect of success in challenging the action to be stayed is

substantial.

The uncertainty attached to judicial review in an era where agency action can receive deference, not just

on matters properly committed to agency discretion, but also on matters of interpretation properly

reserved for courts,[ 101] complicates the decision on stay requests by making it more difficult to

evaluate the probability of success. This uncertainty may reduce judicial willingness to grant stays. But

an assessment of the impact on the parties requesting a stay and of the seriousness of the legal

arguments advanced often should militate for staying agency action.

Although two other factors -- the balance between harm to the moving party and the opposing party

and the effect of a stay on public interests -- are also considered, these tend to be less important if the

first two are satisfied.[ 102] In those circumstances, the balance of harm factor generally will pit serious

financial consequences or dislocation from forced investment (in equipment, alteration of business

practices, or other costly adjustments) prior to adjudication of the legality of an administrative action

against modest cost from delay in implementing a rule if it is found to be legal.[ 103]

There also is a tendency of the balance-of-interests and public interest factors to overlap, as well as a

lack of precision in the specification of the last factor. The interests to be balanced against those

represented by the party moving for a stay almost inevitably are those claimed by the government to be

public interests, but the interests on the other side similarly are part of the general public stake in the

outcome.[ 104] The "public interest," in other words, axiomatically includes private interests on both

sides.

Hence, the real focus of the public interest prong properly is on those interests otherwise not

represented in the contest over the rule or similar government action at issue. That should distinguish

between general public interests and those of, for example, competing private firms taking opposing

views on the proposed administrative decision.

Contrast, for example, the following two settings. First, consider a decision to take a compulsory license

in a particular, patent-protected pharmaceutical to produce a vaccine deemed essential to combat a

public health crisis. In this situation, the imposition on patent rights could be significant (both

diminishing control over patent use and very likely reducing revenue for the patent-holder), but the

government is obligated to provide reasonable compensation to the patent holder (mitigating some of

the harm) and the asserted risk to public health is both great and immediate.[ 105] The serious factual

inquiries are apt to be how credible the threat to public health is, how imminent it is, and whether the

government has taken the requisite steps to seek adequate vaccine production before asserting a

compulsory license.[ 106] Quite often, a compulsory license is neither necessary nor even necessarily

helpful in combatting the perceived harms, but at least there is a plausible claim of public harm from

granting a stay in this setting.[ 107]

Second, think of a major environmental rule change conceived as the initial step in combatting a

perceived long-term threat. That is the argument put forward in favor of a large number of rules

adopted by the EPA. These rules often seek to counter effects of phenomena that are contested either

in the question of their existence, their source, the relative contribution of different sources, or the

effectiveness of different potential palliatives or solutions.[ 108] Further, the phenomena at issue --

global climate change is the clearest example -- often have diffuse effects for which steps are taken

locally (not globally) that have minimal impact and, depending on various substitution effects, may even

produce consequences that are the exact opposite of those intended.[ 109] In this context, with little

certainty of the harm being counteracted or of the effectiveness of the proposed steps and with little or

no evidence of the importance of immediate action, the public interest almost never will militate in

favor of denying a stay and should not be used to support rules' effectiveness during the period of

review.

B. Stays in Context: Administrative Adventurism and Private Risk

In a world where administrative agencies exercise enormous authority and often are willing to press the

boundaries of their already generous mandates, the stay becomes not just a matter of equitable justice

but a critical protection against government overreaching. Even where equitable-judicial discretion is

the rule, appellate courts should be attentive to the consequences of denying stays of administrative

rules in the context of the modern, far-reaching administrative state.

The importance of decisions on stay applications is illustrated by the history of EPA regulations at issue

in recent litigation. The EPA had for decades read its relevant governing statute, the Clean Air Act, as

limited to authorizing the sort of regulation of air pollutants that fit within a framework that would

permit control of specific emissions that have clear, defined health effects that can be eliminated by

reduction of those emissions.[ 110] That framework is at odds with construing the law to authorize

control of global climate change.[ 111] Although the Supreme Court's decision in Massachusetts v. EPA[

112] gave a very different reading to the statute, permitting the agency to consider regulation of

"greenhouse gases," it did not mandate such regulation much less explain how regulation of greenhouse

gases would comport with particular regulatory provisions of the Act.[ 113]

Following the Massachusetts v. EPA decision, the EPA, under different political leadership, made

regulation of greenhouse gases to address climate change a high priority. EPA officials also discovered

that it was not an easy matter to fit that imperative within the legal framework of the Clean Air Act (the

only legal basis on which the EPA could rest its endeavors), as even the most truncated accounting of

some of the EPA's decisions in this regard shows.

Part of the EPA's effort to reach all of the major sources of greenhouse gasses relied on a reading of the

Clean Air Act as allowing EPA to regulate all emitting sources as part of a unified plan, regardless of the

fit with particular regulatory programs under the Act (which has different component parts with

differing standards and disparate implementing authority).[ 114] Trying to reach power plants releasing

greenhouse gases, such as carbon dioxide, under the same structure that was designed for other

sources releasing pollutants that are not natural byproducts of most energy production, however, would

have meant that the EPA needed to issue an enormous number of permits -- hundreds of thousands of

permits (or more) -- as opposed to the hundreds that were initially understood as within the relevant

sections of the Act.[ 115] Further, although the part of the statute the EPA relied on gave it broader

regulatory power in some respects, it could not reasonably apply to greenhouse gas emissions as

written, both because of the costs that would have imposed on the EPA's administrative resources and

because it would have threatened draconian costs to a wide swath of American industry.[ 116]

In fact, the decision to reach all "sources" emitting (or capable of emitting), for relevant provisions of

the law, either 100 tons of any air pollutant from certain specified stationary sources or 250 tons of any

pollutant from other sources annually -- the statutorily prescribed levels for permitting respecting

pollutants judged by the EPA to pose a threat to public health -- produced practical consequences the

EPA itself labelled as absurd.[ 117] Rather than reconsider its determination to apply the Clean Air Act to

greenhouse gases as if they were "pollutants," the EPA pointed to the absurd results of adhering to the

Act's commands as justification for it to adopt a "tailoring rule" that reset the triggering levels to 75,000

and 100,000 tons per year of greenhouse gases.[ 118] These levels, which were, respectively, 750 and

400 times the statutory standards, were the lowest levels the EPA deemed reasonably consistent with

greenhouse gas regulation aimed at reducing the pace of climate change.[ 119]

The Supreme Court, in UARG v. EPA,[ 120] struck down the EPA's "tailoring rule," concluding that it went

beyond the agency's statutory authority.[ 121] The Court told the agency that it had the choice to apply

other provisions of the law or to decide that the law was not consistent with its plan for reducing

greenhouse gas emissions and seek other legislation that would not produce absurd results, but the

agency could not interpret the law to produce absurd results and then adopt rules that violate the law in

order to avoid the absurdity.[ 122]

The adoption and invalidation of the tailoring rule are only parts of the tension between the EPA's

strong desire for broad restriction of greenhouse gases and the less clear legal authority available for the

agency to do that. The EPA adopted a broad plan to control climate change by restricting power plant

emissions, known as the Clean Power Plan.[ 123] This plan was challenged as exceeding EPA authority --

in part because it relies on a provision of the Clean Air Act that does not seem to apply to power plants,

which are covered by a different provision and seemingly exempted from the provision relied on for its

more capacious authorization for agency control -- and as insufficiently connected to the announced

shape of the rule (failing to give adequate notice of the considerations ultimately relied on by the EPA).[

1]2[ 4]

This is the initiative that the Supreme Court stayed in the winter of 2016 to preserve the status quo

during the pendency of judicial review of its legality.[ 125] The Court's stay decision highlights the

interrelation between the nature of judicial review and the risk to regulated entities from delayed

compliance with agency rules.

If the agency is acting beyond its statutory authority and imposing extraordinary costs on industry,

forced compliance during the period in which the rule is contested in court amounts to imposing the

punishment for what may or may not constitute a crime.[ 126] Of course, some imposition on

individuals and entities affected by a change in the governing law is inevitable, and the risk of such

impositions occurring during the pendency of litigation challenging a change in the law is analytically

similar in some respects to other causes of harm. But the statement that there has been a change in the

law supposes a source of change that at least is recognized as a valid enactment of law. That assumption

is very much in contest here.

In a mythical world in which agencies are held to standards of action that are clearly consistent with the

constitutional framework -- that do not allow delegated legislative authority and that limit federal

regulation to matters within the constitutionally assigned sphere of federal power -- the risks associated

with permitting a regulation to take effect may be modest. But in the current real world, when agencies

routinely exercise authority that, at a minimum, is reserved to Congress and limited by the

Constitution's special structural requirements for legislative enactments, putting rules into effect

without pausing to allow courts to consider challenges poses far greater risks.[ 127]

The problem faced by those targeted by regulations of doubtful (or at best arguable) legality can be seen

most clearly, perhaps, by looking to the saga of another EPA regulation, the MATS, concerning mercury

emissions from power plants.[ 128] In Michigan v. EPA, the Supreme Court invalidated the MATS rule

after interpreting relevant statutory language permitting regulation that is "necessary and appropriate"

to require consideration of the costs -- in this case, estimated at roughly $10 billion per year -- as well as

the benefits of regulation.[ 129] The Court remanded the rule to the court of appeals, which returned it

to the agency for reconsideration of the rule in light of its costs (without, however, vacating the rule).[

130] EPA greeted this decision, not with a statement of contrition at having failed to comply with

relevant legal requirements, but instead with an announcement that fans of its regulation should not be

troubled, as the industry was already heavily invested in complying with the rule.[ 131] The clear

implication was that the adoption of a rule, legal or not, would suffice to produce the desired results.

If the targets of the rule must either make a substantial investment in response to an agency

determination of questionable legality or risk being sanctioned for noncompliance if the rule is not

overturned, many entities will decide that the least risky alternative is to comply rather than to fight.[

132] Compliance may force firms into inefficient decisions, but implementing those decisions often will

be more attractive to businesses than litigating over the legality of the rules and then, perhaps, having

to make the necessary changes after other competitors have already done so. A $10 billion annual cost

is a problem for any industry, but a major cost of business combined with a competitive disadvantage is

an even more onerous penalty for firms deciding whether to invest substantial sums in challenging an

agency rule.[ 133] Worse yet, for some firms, the threat of having to invest in expensive equipment,

redesign, or other steps necessary to comply with regulations such as MATS or the Clean Power Plan will

be sufficient to induce closure of some operations or even exit from the industry.[ 134] This cost will be

exacerbated to the extent that customers and suppliers make plans to change from current

arrangements rather than being caught if new administratively imposed requirements make staying

with present engagements uneconomic.

In this context, leaving an agency's rule in place during the period in which it is under review in the

courts has significant (at times, vital) implications for the rule's targets and those who must deal with

them. Failure to stay a rule to preserve the status quo signals the expectation that the rule will survive

judicial review.[ 135] That signal, in turn, has a likely effect on those who must either comply or risk

consequences -- practical or legal -- if the rule's provisions, including penalties, become enforceable.

Having the rule overturned eventually is no guarantee that the enterprises subject to its strictures will

be spared those consequences. That is the implication of the MATS saga, of EPA's response to the

Supreme Court's decision, and of observers' skepticism about the degree to which EPA officials might

consciously have counted on the lock-in effect of an un-stayed rule.[ 136]

A useful analogy -- though obviously drawn from a different context -- is the very high-profile decision to

prosecute Arthur Andersen LLP (the large and successful accounting firm) for allegedly unlawful activity

in connection with its provision of accounting services to Enron Corporation.[ 137] The reversal of

Andersen's conviction did not resurrect that firm; the firm's prosecution constituted such a strong public

signal of clients' inability to rely on Andersen's credibility that the firm simply could not continue to

function.[ 138] The same impact can attach to denying a stay of a major rule, especially one with

aggressive implementation deadlines, although the grant of a stay does not eliminate all costs

associated with a rule of questionable legality.

Simply put, staying an agency rule may not be enough to prevent harm to those who must decide

whether to invest in measures that would be needed for a rule's implementation, especially when the

period between decision on its legality and the date when it will be applied is short, but it is often an

essential step -- necessary but not necessarily sufficient.

CONCLUSION

Although the Constitution assigns to Congress (along with the President, so far as his veto power is an

effective check on legislative priorities) the power to craft rules regulating a limited range of private

behaviors, the modern administrative state looks quite different from that carefully designed

constitutional structure. Today, thousands of rules are adopted by administrative agencies, entities that

often are not effectively controlled by any elected official and that make rules free from the sort of

checks and balances associated with bicameralism and presentment (two essential constraints on

congressional lawmaking). Administrative rules are far more numerous than the laws enacted by

Congress, cover far more pages in the relevant legal codes, account for far more regulatory commands,

and impose extraordinary costs on the American public in general and in concentrated fashion on

particular individuals and entities.

Courts have the capacity to review the legality of the rules and, as part of their heritage of equitable

remedies, also have the power to delay rules' effectiveness, a step that can reduce the costs entailed by

rules of questionable legal pedigree. The tendency of courts to defer to agencies under doctrines that

can be read as permitting agencies to exercise discretion over matters not self-evidently within the

agencies' proper domain, however, has reinforced judicial reluctance to halt the implementation of

agency rules pending review. Even if the standards applicable to preliminary injunctions often militate in

favor of stays, presuming that agencies know best what rules should govern private behavior now

treated as regulable by the federal government yields frequent denials of stay applications.

Judges should recognize that, while administrative officials enjoy some degree of discretion, legal

constraints on agency action -- the size and scope of which are matters within the purview of judicial

determination -- cannot be effective in many instances unless those who are subject to administrative

decisions enjoy a meaningful avenue to challenge them. Holding rules in abeyance until they can be

reviewed frequently is the best vehicle for guaranteeing a meaningful review, one that can result in

something more than a Pyrrhic victory.

Given the vast reach of federal administrative regulation and the concentrated impact they often have

on specific individuals and entities, canons of deference to both administrative and judicial discretion

should be revisited to preserve the status quo to provide space for a serious evaluation of the rules'

consistency with law. Freedom from coercive acts, from government fiat outside the bounds of the law,

from regulatory exactions that gain traction from the ability of officials to impose costs because the

review for legality asks too little and comes too late -- these are protections essential to the rule of law.

Allowing the time for considered assessment whether a rule is legally sufficient and not simply a

reflection of political priorities of the moment -- especially priorities not set through processes long

deemed essential to the adoption of rules for private conduct -- protects rule-of-law values that are part

of our constitutional heritage. That may not suit today's regulators, but it fits the lessons bequeathed to

us by those who fought for our freedom and fashioned a government they hoped would protect it.

FOOTNOTES

1. See West Virginia v. EPA, 136 S. Ct. 1000, 1000 (2016) (staying the EPA's regulation, Carbon Pollution

Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662

(Oct. 23, 2015)).

2. See Michigan v. EPA, No. 15A88 (June 29, 2016) (denying stay of the EPA's regulation, National

Emission Standards for Hazardous Air Pollutants from Coal and Oil-Fired Electric Utility Steam

Generating Units and Standards of Performance for Fossil-Fuel-Fired Electric Utility, Industrial-

Commercial-Institutional, and Small Industrial-Commercial-Institutional Steam Generating Units, Final

Rule, 77 Fed. Reg. 9,304 (Feb. 16, 2012))) [hereinafter MATS]. As Circuit Justice for the District of

Columbia Circuit, where the two cases originated, Chief Justice Roberts was responsible for disposing of

the applications for stay by deciding the matters or referring them to the full Court.

3. See, e.g., Ronald M. Levin, "Vacation" at Sea: Judicial Remedies and Equitable Discretion in

Administrative Law, 53 DUKE. L.J. 291, 324-25 (2003).

4. See, e.g., Zygmunt J.B. Plater, Statutory Violations and Equitable Discretion, 70 CAL. L. REV. 524, 533-

34 (1982).

5. For contrasting views on the roles of law-boundedness and discretion, see Doug Rendelman, The

Triumph of Equity Revisited: The Stages of Equitable Discretion, 15 NEV. LJ. 1397 (2015); Stephen N.

Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical

Perspective, 135 U. PA. L. REV. 909 (1987).

6. See, e.g., Nederlander v. Nederlander, 958 N.Y.S.2d 45, 46 (N.Y. App. Div. 2013) (deferring to the trial

judge and observing that "in order to … maintain the status quo, and to prevent the dissipation of

marital property, the court must be able to issue orders to ensure that … marital property [that could be

subject to equitable division in a divorce proceeding] is protected").

7. See id.; Erika Driskell, Comment, Dissipation of Marital Assets and Preliminary Injunctions: A

Preventive Approach to Safeguarding Marital Assets, 20 J. AM. ACAD. MATRIM. LAW. 135, 144-45 (2006)

(exploring legal rules providing increased preference for orders preserving status quo to protect marital

assets).

8. See, e.g., Ronald A. Cass, Overcriminalization: Administrative Regulation, Prosecutorial Discretion, and

the Rule of Law, 15 ENGAGE 14 (2014) [hereinafter Cass, Overcriminalization]; Gary Lawson, The Rise

and Rise of the Administrative State, 107 HARV. L. REV. 1231 (1994) [hereinafter Lawson, Rise and Rise].

9. See, e.g., Gary Fields & John R. Emshwiller, Many Failed Efforts to Count Nation's Federal Criminal

Laws, WALL ST. J. (July 23, 2011), http://online.wsj.com/news/

articles/SB1000142405270230431980457638960107972892.

10. See, e.g., CLYDE WAYNE CREWS, JR., TEN THOUSAND COMMANDMENTS: AN ANNUAL SNAPSHOT OF

THE FEDERAL REGULATORY STATE 65 (2016); Wayne Crews & Ryan Young, Twenty Years of Non-Stop

Regulation, AM. SPECTATOR (June 5, 2013, 10:08 AM), http://spectator.org/articles/55475/twenty-

years-non-stop-regulation.

11. While the exact goal of officials is a matter of debate, it is widely understood that the goal for

officials generally includes personal returns correlated with expanded use of the powers of their offices.

See, e.g., WILLIAM A. NISKANEN, JR., BUREAUCRACY AND REPRESENTATIVE GOVERNMENT 24-38 (1971);

KENNETH A. SHEPSLE & MARK S. BONCHEK, ANALYZING POLITICS: RATIONALITY, BEHAVIOR, AND

INSTITUTIONS 348-77 (1997). This predicate dovetails with incentives for legislators to assign authority

to other officials -- especially officials subject to informal legislative influences -- in less than crystal clear

terms. See, e.g., Peter H. Aronson et al., A Theory of Legislative Delegation, 68 CORNELL L. REV. 1 (1982);

David Epstein & Sharyn O'Halloran, The Nondelegation Doctrine and Separate Powers: A Political

Science Approach, 20 CARDOZO L. REV. 947, 949 (1999); Mathew McCubbins, Roger Noll & Barry

Weingast, Structure and Process, Politics and Policies: Administrative Arrangements and the Political

Control of Agencies, 75 VA. L. REV. 431 (1989); Neomi Rao, Administrative Collusion: How Delegation

Diminishes the Collective Congress, 90 N.Y.U. L. REV. 1463 (2015); Kenneth A. Shepsle, The Strategy of

Ambiguity: Uncertainty and Electoral Competition, 66 AM. POL. SCI. REV. 555 (1972).

12. Apart from the prospect for public-interest-advancing legislation and regulation, it should be noted

that officials often have mixed incentives for action and that both legislating and regulating (and not

legislating or not regulating) can confer benefits on the relevant official decisionmakers. See, e.g., ADAM

SMITH & BRUCE YANDLE, BOOTLEGGERS AND BAPTISTS: HOW ECONOMIC FORCES AND MORAL

PERSUASION INTERACT TO SHAPE REGULATORY POLITICS (2014); Fred S. McChesney, Rent Extraction

and Rent Creation in the Economic Theory of Regulation, 16 J. LEGAL STUD. 101 (1987).

13. See, e.g., THE FEDERALIST NOS. 23-25 (Alexander Hamilton), NO. 42 (James Madison).

14. See, e.g., THE FEDERALIST NOS. 10, 45-51 (James Madison).

15. See, e.g., THE FEDERALIST NO. 10 (James Madison), NOS. 21-23, 84 (Alexander Hamilton); ROBERT H.

BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 4-5 (1990); GORDON S.

WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at 524, 536-47 (1969).

16. See, e.g., THE FEDERALIST NOS. 23-25 (Alexander Hamilton), NOS. 41-42, 45-51 (James Madison),

NO. 78 (Alexander Hamilton); BORK, supra note 15, at 4-5; ALEXIS DE TOCQUEVILLE, 1 DEMOCRACY IN

AMERICA 112-21, 246-71 (1835).

17. THE FEDERALIST NO. 45 (James Madison).

18. See THE FEDERALIST NO. 47 (James Madison).

19. See THE FEDERALIST NOS. 45-46 (James Madison).

20. See THE FEDERALIST NO. 46 (James Madison).

21. See THE FEDERALIST NOS. 45-46 (James Madison).

22. THE FEDERALIST NO. 47 (James Madison).

23. See, e.g., THE FEDERALIST NOS. 47-51 (James Madison).

24. See, e.g., THE FEDERALIST NOS. 47-48, 51 (James Madison), NOS. 67-73, 78-80 (Alexander Hamilton).

25. See THE FEDERALIST NO. 47 (James Madison).

26. THE FEDERALIST NO. 48 (James Madison).

27. Id.

28. See, e.g., Buckley v. Valeo, 424 U.S. 1 (1976); INS v. Chadha, 462 U.S. 919 (1983) (finding that the

one-house legislative veto implemented by Congress violated the constitutional separation of powers);

Mistretta v. United States, 488 U.S. 361 (1989).

29. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (limiting the power of the

President to seize private property in the absence of specifically enumerated authority under the

Constitution or statutory authority conferred on him by Congress); Texas v. United States, 809 F.3d 134

(5th Cir. 2015), afd, No. 15-674 (Jun. 23, 2016).

30. See, e.g., Clinton v. City of New York, 524 U.S. 417 (1998) (holding that the grant of line-item veto

power to the President is unconstitutional).

31. Ronald A. Cass, Delegation Reconsidered: A Delegation Doctrinefor the Modern Administrative State,

40 HARV.J. L. &PUB. POL'Y 147, 153 (2017) [hereinafter Cass, Delegation Reconsidered].

32. See, e.g., id.

33. See, e.g., THE FEDERALIST NO. 22 (Alexander Hamilton), NO. 51 (James Madison), NO. 73 (Alexander

Hamilton); Chadha, 462 U.S. 919.

34. U.S. CONST. art. I, § 1.

35. See, e.g., Mistretta v. United States, 488 U.S. 361, 417-22 (1989) (Scalia, J., dissenting); Wayman v.

Southard, 23 U.S. 1, 46 (1825); Cass, Delegation Reconsidered, supra note 31, at 4.

36. See, e.g., Dep't of Transp. v. Ass'n of Am. Railroads, U.S. Sup. Ct. No. 13-1080 (Mar. 9, 2015), slip op.

at 14, 17, 20 (Thomas, J., concurring); Wayman, 23 U.S. at 42-47; THE FEDERALIST NO. 48 (James

Madison); PHILIP HAMBURGER, IS ADMINISTRATIVE LAW UNLAWFUL? 4-8 (2014); Cass, Delegation

Reconsidered, supra note 31; David Schoenbrod, Separation of Powers and the Powers that Be: The

Constitutional Purposes of the Delegation Doctrine, 36 AM. U. L. REV. 355 (1987) [hereinafter

Schoenbrod, Purposes].

37. See, e.g., Mistretta, 488 U.S. at 417-22; Marbury v. Madison, 5 U.S. 137, 177 (1803); THE FEDERALIST

NO. 78 (Alexander Hamilton); RONALD A. CASS, THE RULE OF LAW IN AMERICA, 46-97 (2001)

[hereinafter CASS, RULE OF LAW]; DE TOCQUEVILLE, supra note 16, at 98-105.

38. See, e.g., Wayman, 23 U.S. at 42-47; THE FEDERALIST NO. 48 (James Madison); Cass, Delegation

Reconsidered, supra note 31, at Part II. Indeed, recognition of the importance of this distinction can be

traced much further back in English history and in the philosophical writings that informed the framing

of the American Constitution. See, e.g., HAMBURGER, supra note 36. While modern scholarship, steeped

in linguistic and philosophical arguments, exhibits extraordinary skepticism about the ability of words to

circumscribe determinate meanings, the practical men who designed our government accepted

common classifications as sufficient to mark the separate spheres of government.

39. See, e.g., THE FEDERALIST NOS. 47-48, 51 (James Madison), Nos. 66-80 (Alexander Hamilton).

40. See, e.g., THE FEDERALIST NOS. 47-48, 51 (James Madison), Nos. 67-73, 78 (Alexander Hamilton).

41. See, e.g., HAMBURGER supra note 36; Cass, Delegation Reconsidered, supra note 31, at Part II; Gary

Lawson, Delegation and Original Meaning, 88 VA. L. REV. 327, 335-53 (2002) [hereinafter Lawson,

Delegation].

42. See Act ofJuly 16, 1790, 1 Stat. 130.

43. See Act of Sept. 29, 1789, 1 Stat. 95; Act of Mar. 3, 1791, 1 Stat. 218.

44. See Act ofJun. 4, 1794, 1 Stat. 372.

45. See id.

46. See Act of Sept. 24, 1789, 1 Stat. 73, 83.

47. See, e.g., Cass Delegation Reconsidered, supra note 31, at Part II.C. For other discussions of early

authorizations of administrative action, see Kenneth Culp Davis, A New Approach to Delegation, 36 U.

CHI. L. REV. 713, 719-20 (1969); Harold J. Krent, Delegation and Its Discontents, 94 COLUM. L. REV. 710,

738-39 (1994); Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. CHI. L.

REV. 1721, 1735-36 (2002).

48. 23 U.S. 1 (1825).

49. Id. at 42-44.

50. See, e.g., Cass Delegation Reconsidered, supra note 31, at Part II; Lawson, Delegation, supra note 41.

51. 143 U.S. 649 (1892).

52. Id. at 692; see also id. at 697 (Lamar, J., dissenting).

53. See id. at 696-700.

54. 276 U.S. 394 (1928).

55. Id. at 404-11.

56. See id. at 404-05.

57. Although much of this expansion of federal regulation occurred through direct command-and-

control impositions, other parts of the expansion were achieved by attaching conditions to federal

benefits, such as Aid to Families with Dependent Children (AFDC). See, e.g., King v. Smith, 392 U.S. 309

(1968) (striking down the so-called "man in the house" rule).

58. See, e.g., DAVID M. KENNEDY, FREEDOM FROM FEAR: THE AMERICAN PEOPLE IN DEPRESSION AND

WAR 1929-1945 (1999); WILLIAM E. LEUCHTENBERG, FRANKLIN D. ROOSEVELT AND THE NEW DEAL:

1932-1940 (1963); William G. Howell & David E. Lewis, Agencies by Presidential Design, 64 J. POL. ECON.

1095 (2002); Lawson, Rise and Rise, supra note 8; Timothy Noah, Obama Pushing Thousands of New

Regulations in Year 8, POLITICO (Jan. 4, 2016),

http://www.politico.com/agenda/agenda/story/2016/1/obama-regulations-2016.

59. See, e.g., CREWS, supra note 10; Larry Alexander & Saikrishna Prakash, Delegation Really Run Riot,

93 VA. L. REV. 1035 (2007); Cass Delegation Reconsidered, supra note 31; Lawson, Delegation, supra

note 41; Lawson, Rise and Rise, supra note 8.

60. See, e.g., Carter v. Carter Coal Co., 298 U.S. 238 (1936); R.R. Ret. Bd. v. Alton R.R. Co., 295 U.S. 330

(1935); Hammer v. Dagenhart, 247 U.S. 251 (1918).

61. See, e.g., Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935); A.L.A. Schechter Poultry Corp. v. United

States, 295 U.S. 495 (1935).

62. See, e.g., Panama Ref. Co., 293 U.S. at 421-30. The assignments of authority were either tied to

implementing certain policies subject to fact-finding respecting circumstances that triggered particular

responses (contingent authority) or were tied to matters such as management of property within the

government's domain or of benefit administration within a narrow compass (such as veteran's pensions)

that were connected to other assigned functions (national defense) traditionally within the executive's

power. See Cass, Delegation Reconsidered, supra note 31; Schoenbrod, Purposes, supra note 36; David

Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance?, 83 MICH. L. REV. 1223 (1985)

[hereinafter Schoenbrod, Substance].

63. See, e.g., Barry Cushman, The Court-Packing Plan as Symptom, Casualty, and Cause of Gridlock, 88

NOTRE DAME L. REV. 2089 (2013); William E. Leuchtenberg, The Origins of Franklin D. Roosevelt's

"Court-Packing"Plan, 1966 SUP. CT. L. REV. 347 (1966).

64. See, e.g., Barry Cushman, Rethinking the New Deal Court, 80 VA. L. REV. 201 (1994); Daniel E. Ho &

Kevin Quinn, Did a Switch in Time Save Nine?, 2 J. LEGAL ANALYSIS 69 (2010); William Leuchtenberg,

When the People Spoke, What Did They Say?: The Election of 1936 and the Ackerman Thesis, 80 YALE

L.J. 2077 (1999); G. Edward White, Cabining the Constitutional History ofthe New Deal in Time, 94

MICH.L. REV. 1392 (1996).

65. See, e.g., Ronald A. Cass, Vive la Deference? Rethinking the Balance Between Administrative and

Judicial Discretion, 83 GEO. WASH. L. REV. 1294 (2015) [hereinafter Cass, Vive la Deference?] (describing

effective end to serious constraints based on limitation of federal authority to enumerated powers --

especially the end of serious limits on the scope of interstate commerce -- as well as constraints based

on assignment of executive power to the President, of restraints on delegation of legislative power, and

eventually of serious judicial inquiry into the limits of statutory assignments of authority). See text at

notes 65-73.

66. 300 U.S. 379 (1937).

67. 317 U.S. 111 (1942).

68. 402 U.S. 146 (1971).

69. 319 U.S. 190 (1943).

70. See id. at 194.

71. 321 U.S. 414 (1944).

72. See id. at 414.

73. See, e.g., Alexander & Prakash, supra note 59, at 1042; Cass, Delegation Reconsidered, supra note

31; Schoenbrod, Substance, supra note 62, at 360. See also Mistretta v. United States, 488 U.S. 361, 372

(1989) (judicial decisions reflect "practical understanding that in our increasingly complex society,

replete with ever changing and more technical problems, Congress simply cannot do its job absent an

ability to delegate power under broad general directives").

74. 467 U.S. 837, 865 (1984).

75. See, e.g., Jack M. Beermann, End the Failed Chevron Experiment Now: How Chevron Has Failed and

Why It Can and Should Be Overruled, 42 CONN.L. REV. 779, 781-82 (2010); Cass, Vive la Deference?,

supra note 65; Ronald A. Cass, Is Chevron's Game Worth the Candle? Burning Interpretation at Both

Ends, in LIBERTY'S NEMESIS: THE UNCHECKED EXPANSION OF THE STATE 57, 58-59 (2016) [hereinafter

Cass, Chevron's Game]; Gary Lawson & Stephen Kam, Making Law Out of Nothing at All: The Origins of

the Chevron Doctrine, 65 ADMIN. L. REV. 1, 2 (2013); Thomas W. Merrill, The Story of Chevron: The

Making of An Accidental Landmark, 66 ADMIN. L. REV. 253, 276-77 (2014).

76. See, e.g., Cuozzo Speed Tech., LLC v. Lee, 136 S. Ct. 2131, 2148 (2016) (Thomas, J., concurring); Clark

Byse, Judicial Review of Administrative Interpretation of Statutes: An Analysis of Chevron's Step Two, 2

ADMIN. LJ. 255, 255-56 (1988); Cass, Chevron's Game, supra note 75, at 58-59; Cynthia Farina, Statutory

Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452, 459-60

(1989); Michael Herz, Deference Running Riot: Separating Interpretation and Lawmaking Under

Chevron, 6 ADMIN. L. REV. 187, 191-93 (1992); Antonin Scalia, Associate Justice of the U.S. Supreme

Court, Judicial Deference to Administrative Interpretations of Law, Administrative Law Lecture at Duke

University School of Law, January 1989, in 1989 DUKE LJ. 511, 511-12 (1989).

77. See, e.g., Alexander & Prakash, supra note 59, at 1036; Linda R. Cohen & Matthew L. Spitzer, Solving

the Chevron Puzzle, 57 LAW & CONTEMP. PROBS. 65, (1994); E. Donald Elliot, Chevron Matters: How the

Chevron Doctrine Redefined the Roles of Congress, Courts, and Agencies in Environmental Law, 16 VlLL.

ENVTL. L.J. 1, 3 (2005); Herz, supra note 76 at 188-89; Schoenbrod, Substance, supra note 62, at 1224-

25.

78. See, e.g., Cass, Overcriminalization, supra note 8, at 18; Fields & Emshwiller, supra note

79. See United States v. Southwestern Cable Co., 392 U.S. 157, 172-74 (1968).

80. See Comcast Corp. v. FCC, 600 F.3d 642, 648 (D.C. Cir. 2010); Verizon v. FCC, 740 F.3d 623, 643 (D.C.

Cir. 2014); United States Telecomm. Ass'n v. FCC, 825 F.3d 675, 722-73 (D.C. 2016).

81. See FDA v. Brown & Williamson Tobacco Corp., 521 U.S. 120, 155 (2000).

82. See Part IV infra.

83. See, e.g., Michael Greve & Christopher C. DeMuth, Sr., Agency Finance in the Age of Executive

Government, George Mason Law & Econ. Research Paper No. 16-25 1, 8-9 (June 20, 2016),

http://papers.ssrn.com/sol3/papers.cfm?abstract%5Fid=2798289; Christopher C. DeMuth, Sr., Agency

Taxation, 16 ENGAGE 1, 4-5 (2015).

84. See, e.g., Subrin, supra note 5, at 928.

85. See, e.g., Rendelman, supra note 5, at 1401-02; Subrin, supra note 5, at 919, 932.

86. See, e.g., William Searle Holdsworth, The Relation of the Equity Administered by the Common Law

Judges to the Equity Administered by the Chancellor, 26 YALE LJ. 1, 3 (1916). Both common law and

equity evolved as separate legal forms, sometimes explained as alternative institutions intended to

demonstrate the King's commitment to justice, in distinction to archaic forms of law that were rooted in

narrower concepts of right. See, e.g., George Burton Adams, The Origin of English Equity, 16 COLUM. L.

REV. 87, 89, 93 (1916).

87. It is a matter of debate how much the deficiencies of legal remedies referenced in explaining resort

to equitable rules are real and how much now reflect a more general preference for the underlying

precepts of equity. See, e.g., Douglas Laycock, The Death of the Irreparable Injury Rule, 103 HARV. L.

REV. 687, 718 (1990); Douglas Laycock, The Triumph of Equity, 56 LAW & CONTEMP. PROBS. 53, 55

(Summer 1993); Rendelman, supra note 5, at 1402-03; Henry E. Smith, Fusing the Equitable Function in

Private Law, Harv. Pub. L. Working Paper 16-27 at 26,

http://papers.ssrn.com/sol3/papers.cfm?abstract%5Fid=2783483 [hereinafter Smith, Fusing]; Subrin,

supra note 5.

88. See, e.g., FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-

BASED DECISIONMAKING IN LAW AND IN LIFE (1991); Colin S. Diver, The Optimal Precision of

Administrative Rules, 93 YALE L.J. 63, 66 (1983); Lon L. Fuller, The Forms and Limits of Adjudication, 92

HARV. L. REV. 353 (1978) (edited version of work earlier used in manuscript form). Rulecrafting issues

can be exacerbated by opportunities for strategic conduct -- and also can expand or contract those

opportunities. See, e.g., Smith, Fusing, supra note 87, at 3-4. The difficulty in creating a rule that fits the

policy ideal does not necessarily mean that allowing decisions to be made under a less directive

standard will be preferable; that assessment depends on a quite complicated set of considerations of its

own. See, e.g., Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L.J. 557, 586-96

(1992). The problem of finding a balance between decisions that fit accepted policy preferences and

guidance designed to constrain decisionmakers has been a central issue in criminal sentencing. See, e.g.,

Mistretta v. United States, 488 U.S. 361, 417-22 (1989).

89. See, e.g., RONALD A. CASS, THE RULE OF LAW IN AMERICA xvi, 4-19, 28-29 (2001); HAMBURGER,

supra note 36, at 85-86; FRIEDRICH A. HAYEK, THE ROAD TO SERFDOM 8087 (1944); Michael Dorf,

Prediction and the Rule of Law, 42 UCLA L. REV. 651, 681-85 (1995); Frank H. Easterbrook, Formalism,

Functionalism, Ignorance, Judges, 22 HARV.J.L. & PUB. POL'Y 13, 17-18 (1998); Michael Oakeshott, The

Rule of Law, in ON HISTORY AND OTHER ESSAYS 119, 130-32, 136-40 (1983); Antonin Scalia, The Rule of

Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1178-80, 1185-86 (1989) [hereinafter Scalia, Rules].

90. See, e.g., Samuel L. Bray, The System of Equitable Remedies, 63 UCLA L. REV. 530, 551-58 (2016);

John L. Garvey, Some Aspects of the Merger of Law and Equity, 10 CATH. U. L. REV. 59, 64-66 (1961);

John Leubsdorf, The Standardfor Preliminary Injunctions, 91 HARV. L. REV. 525, 532 (1978).

91. 547 U.S. 388, 391, 394 (2006).

92. Id. at 391.

93. See, e.g., Mark P. Gergen, John M. Golden & Henry E. Smith, The Supreme Court's Accidental

Revolution? The Test for Permanent Injunctions, 112 COLUM. L. REV. 203, 204-205 (2012).

94. See eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 394-95 (Roberts, J., concurring); id. at 395-97

(Kennedy, J., concurring).

95. See, e.g., Gergen, Golden & Smith, supra note 93, at 206. The traditional approach to remedying

patent infringement, for example, presumed irreparable harm from infringement because the principal

effect of patent grants is to confer the right to exclude others from use of the patented invention during

the effective period for patent protection. See, e.g., U.S. CONST. art. I, § 8, cl. 8; RONALD A. CASS &

KEITH N. HYLTON, LAWS OF CREATION: PROPERTY RIGHTS IN THE WORLD OF IDEAS 28-31, 49-50 (2013);

FRITZ MACHLUP, COMM. ON THE JUDICIARY, SUBCOMM. ON PATENTS, TRADEMARKS & COPYRIGHTS,

85TH CONG., STUDY ON AN ECONOMIC REVIEW OF THE PATENT SYSTEM 1, 20-21 (1958); Edmund W.

Kitch, The Nature and Function of the Patent System, 20 J.L. & ECON. 265,279(1977).

96. See, e.g., CASS & HYLTON, supra note 95; Gergen, Golden & Smith, supra note 93, at 213-14; Kitch,

supra note 95, at 277-78. Of course, this observation does not translate into an automatically strong or

unexceptional set of remedies for every property right violation. See, e.g., CASS & HYLTON, supra note

95 (using dynamic cost-benefit analysis as the cornerstone for explaining many of the rules of

intellectual property, including exclusions from eligibility for protection and limitations on the scope of

protection); Henry E. Smith, Property as the Law of Things, 125 HARV. L. REV. 1691, 1706, 1710 (2012)

(using information-cost economics to explore aspects of property right protections, exceptions, and

alternative forms of protection).

97. See, e.g., Gergen, Golden & Smith, supra note 93, at 234-35.

98. See, e.g., Leubsdorf, supra note 90, at 533-37.

99. See id at 534-40.

100. Although some commentary stresses the importance of the balance-of-interests consideration --

the function of equity in providing just outcomes naturally would look to the effect of an equitable

remedy on all competing interests -- that emphasis is not at odds with the protection of the status quo

where the dominant factors militate in favor of a stay. See, e.g., eBay, Inc. v. MercExchange, L.L.C., 547

U.S. 388, 394-95 (Roberts, J., concurring) (underscoring importance of protecting rights in ways only

equitable remedies effectively can and opposing implication that regard for eBay factors should impede

general inclination to use injunctions to protect property rights); Leubsdorf, supra note 90, at 550-51

(emphasizing importance of balancing interests).

101. See, e.g., Beermann, supra note 75, at 846; Cass, Chevron's Game, supra note 75, at 60; Herz, supra

note 75, at 191-93; Gary Lawson, Reconceptualizing Chevron and Discretion: A Comment on Levin and

Rubin, 72 CHI.-KENT L. REV. 1377, 1381 (1997) [hereinafter Lawson, Reconceptualizing]; Peter L. Strauss,

"Deference" Is Too Confusing -- Let's Call Them "Chevron Space" and "Skidmore Weight," 112 COLUM. L.

REV. 1143, 1158-59 (2012).

102. See, e.g., Texas v. EPA, 829 F.3d 405, 434-35 (5th Cir. 2016); Ohio v. U.S. Army Corps of Eng'rs, 803

F.3d 804, 808 (6th Cir. 2015).

103. See, e.g., Texas v. EPA, 829 F.3d at 434; see also Ohio v. U.S. Army Corps of Eng'rs, 803 F.3d at 808

(discussing the serious disruption to both private parties and state interests from change in rule

respecting boundaries between federal and state regulation of waters protected under the Clean Water

Act). But see Leubsdorf, supra note 90, at 525-26 (presenting a more agnostic view of the ordinary

balance of competing interests).

104. See, e.g., Leubsdorf, supra note 90, at 525-26.

105. See, e.g., 28 U.S.C. § 1498 (2012); CASS &HYLTON, supra note 95, at 168-72.

106. For different views on the costs and benefits of compulsory licenses in such settings, see, for

example, Ronald A. Cass, Compulsory Licensing of Intellectual Property: The Exception that Ate the

Rule?, CRITICAL LEGAL ISSUES SERIES, Sept. 2007, WASH. LEGAL FOUND., Working Paper No. 150

[hereinafter Cass, Compulsory Licensing]; Colleen Chien, Cheap Drugs at What Price to Innovation: Does

the Compulsory Licensing of Pharmaceuticals Hurt Innovation?, 18 BERKELEY TECH. L.J. 853 (2003);

Richard A. Epstein & F. Scott Kiefff, Questioning the Frequency and Wisdom of Compulsory Licensingfor

Pharmaceutical Patents, 78 U. CHI. L. REV. 71 (2011); Cole M. Fauver, Comment, Compulsory Patent

Licensing in the United States: An Idea Whose Time Has Come, 8 Nw.J. INT'L L. & BUS. 666 (1988).

107. See, e.g., Cass, Compulsory Licensing, supra note 106, at 17-19; Epstein & Kieff supra note 106, at

80-85.

108. See, e.g., UARG v. EPA, 134 S. Ct. 2427, 2436-38 (2014); see also Massachusetts v. EPA, 549 U.S. 497

(2007) (respecting Massachusetts's requested rule to regulated sources of greenhouse gasses to combat

global climate change).

109. That is a separate set of observations from the more public controversy over the existence,

significance, and possible causes of climate change. See, e.g., Peter Ferrara, Sorry Global Warming

Alarmists, The Earth is Cooling, FORBES (May 31, 2012),

http://www.forbes.com/sites/peterferrara/2012/05/31/sorry-global-warming-alarmists-the-earth-is-

cooling; William D. Nordhaus, A Review of the Stern Review on the Economics of Climate Change, 45 J.

ECON. LIT. 686 (2007).

110. Although commonly referred to as if it were a single statute, the Clean Air Act is a series of laws,

starting in 1955 with significant additions and amendments in 1963, 1967, 1970, 1977, and 1990. The

initial law was the Air Pollution Control Act of 1955, Act ofJul. 14, 1955, 69 Stat. 322. The Act (including

its various extensions and amendments) is codified at 42 U.S.C. §§ 7401-7671q (2012).

111. For varying assessments of this point and other issues involved in the change in EPA treatment of

the regulation of greenhouse gases, see, for example, Jonathan H. Adler, Heat Expands All Things: The

Proliferation of Greenhouse Gas Regulation Under the Obama Administration, 34 HARV. J.L. & PUB.

POL'Y 421 (2011); Ronald A. Cass, Massachusetts v. EPA: The Inconvenient Truth About Precedent, 93

VA. L. REV. IN BRIEF 75 (2007); Jody Freeman & Adrian Vermeule, Massachusetts v. EPA: From Politics to

Expertise, 2007 SUP. CT. REV. 51 (2007); Jody Freeman, Why I Worry About UARG, 39 HARV. ENVTL. L.

REV. 9 (2015); Andrew P. Morriss, Litigating to Regulate: Massachusetts v. EPA, 2006-2007 CATO SUP.

CT. REV. 193, 208-11 (2006).

112. 549 U.S. 497 (2007).

113. See id. at 533-34.

114. See EPA, Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 75 Fed.

Reg. 31,514, 31,516 (Jun. 3, 2010) [hereinafter Tailoring Rule] (to be codified at 40 C.F.R. pts. 51-52, 71-

72).

115. See, e.g., UARG v. EPA, 134 S. Ct. 2427 (2014); EPA, Final Rule: Prevention of Significant

Deterioration and Title V Greenhouse Gas Tailoring Rule, 1 (Apr. 13, 2010),

https://www.epa.gov/sites/production/files/2015-12/documents/20100413fs.pdf (estimating that,

without the tailoring rule, tens of thousands of permits would have been required under the Prevention

of Significant Deterioration part of the Clean Air Act and millions of permits would have been required

under Title V of the Act).

116. See UARG v. EPA, 134 S. Ct. 2427, 2436-38 (2014); Tailoring Rule, supra note 114, at 31,533.

117. Tailoring Rule, supra note 114, at 31,523. Among other things, the EPA estimated that it would face

additional costs of dealing with permit requests that would amount to approximately $300 million per

year. See. id. at 31,540.

118. See id. at 31,524.

119. See id. at 31,523-24.

120. 134 S. Ct. 2427, 2436-38 (2014).

121. See id. at 2427.

122. See id.

123. See EPA, Carbon Emission Guidelines for Existing Stationary Sources: Electric Utility Generating

Plants, 80 Fed. Reg. 64,662, 64,663-65 (Oct. 23, 2015) (to be codified at 40 C.F.R. pt. 60).

124. See, e.g., Jonathan H. Adler, Placing the Clean Power Plan in Context, WASH. POST (Feb. 10, 2016),

[hereinafter Adler, Context], https://www.washingtonpost.com/news/volokh-

conspiracy/wp/2016/02/10/placing-the-clean-power-plan-in-context.

125. See West Virginia v. EPA, 136 S. Ct. 1000, 1000 (2016); Jonathan H. Adler, Supreme Court Puts the

Brakes on the EPA's Clean Power Plan, WASH. POST (Feb. 9, 2016),

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/09/supreme-court-puts-the-

brakes-on-the-epas-clean-power-plan.

126. Apart from the similarities between civil penalties and criminal penalties, the administrative actions

referenced here as subjects of stay requests pending review often are backed up by potential criminal

punishments. See, e.g., Cass, Overcriminalization, supra note 8; Fields & Emshwiller, supra note 9;

George Terwilliger, III, Under-Breaded Shrimp and Other High Crimes: Addressing the Over-

Criminalization of Commercial Regulation, 44 AM. CRIM. L. REV. 1417 (2007); Daniel Uhlmann,

Prosecutorial Discretion and Environmental Crime, 38 HARV. ENVTL. L. REV. 159 (2014).

127. See, e.g., Alexander & Prakash, supra note 59; Byse, supra note 76, at 262-63; Cass, Chevron's

Game, supra note 75; Cass, Deference, supra note 65; Cass, Delegation Reconsidered, supra note 31;

Herz, supra note 76; Lawson, Delegation, supra note 41; Lawson, Reconceptualizing, supra note 101;

Schoenbrod, Purposes, supra note 36. Obviously, actions by the President on matters constitutionally

committed to the Chief Executive would stand on different ground. So, too, would decisions that reduce

impositions on those who are subject to administrative rules, for reasons explored in, for example,

HAMBURGER, supra note 36, at 97-102, and Cass, Delegation Reconsidered, supra note 31.

128. See MATS, supra note 2, at 9305.

129. See 135 S. Ct. 2699, 2711-12 (2015).

130. See, e.g., Adler, Context, supra note 124; Michael S. Greve, Clean Power, Dirty Hands, LIBRARY OF

LAW & LIBERTY (Feb. 1, 2016), http://www.libertylawsite.org/2016/02/01/ clean-power-dirty-hands/.

131. See Greve, supra note 130.

132. See, e.g., Murray Energy Corp. v. EPA, Coal Industry Application for Immediate Stay, at 29-34 (Jan.

2016) (joined with West Virginia v. EPA, 136 S. Ct. 1000, 1000 (2016)).

133. Competitive considerations play a role not just in decisions respecting challenges to rules but also

in the initial support for rules, one of the standard insights behind the "bootleggers and Baptists"

explanation of regulations' mixed parentage. See, e.g., SMITH & YANDLE, supra note 12; Anne O.

Krueger, The Political Economy of the Rent-Seeking Society, 64 AM. ECON. REV. 291 (1974); George J.

Stigler, Economic Competition and Political Competition, 13 PUBLIC CHOICE 91 (1972).

134. See, e.g., Adler, Context, supra note 124; Greve, supra note 130.

135. That is implicit in the considerations that guide disposition of stay requests, in line with the

considerations used in deciding when to issue other temporary injunctions. See, e.g., Leubsdorf, supra

note 90, at 533-42.

136. See, e.g., Adler, Context, supra note 124; Greve, supra note 130.

137. Much of the story of this prosecution is recounted in the Supreme Court decision reversing

Andersen's conviction on a single count of obstructing a federal investigation. See Arthur Andersen, LLP

v. United States, 544 U.S. 696 (2005); see also Carrie Johnson, U.S. Ends Prosecution of Arthur Andersen,

WASH. POST (2005), http://www.washingtonpost.com/wp-

dyn/content/article/2005/11/22/AR2005112201852.html; Jonathan Weil & Alexei Barreonuevo, Arthur

Andersen is Convicted on Obstruction-of-Justice Count, WALL ST. J. (Jun. 16, 2002),

http://www.wsj.com/articles/SB1023469305374958120.

138. See, e.g., Arthur Andersen, 544 U.S. 696; Ronald A. Cass, Power Failures: Prosecution, Power, and

Problems, 16 ENGAGE (no. 3) 29, 34-35 (Nov. 2015); Theodore Eisenberg & Jonathan R. Macey, Was

Andersen Different? An Empirical Examination of Major Accounting Firm Audits of Large Clients, 1 J.

EMPIRICAL LEGAL STUD. 263 (2004); Richard A. Epstein, Deferred Prosecution Agreements on Trial:

Lessons from the Law of Unconstitutional Conditions, in PROSECUTORS IN THE BOARDROOM: USING

CRIMINAL LAW TO REGULATE CORPORATE CONDUCT 38, 47 (2011). But see Gabriel Markoff, Arthur

Andersen and the Myth of the Corporate Death Penalty: Corporate Criminal Convictions in the Twenty-

First Century, 15 U. PENN.J. BUS. L. 797 (2013). For a thoughtful overview of the issues involved in

corporate prosecutions, see, for example, Vikramaditya S. Khanna, Corporate Criminal Liability: What

Purpose Does it Serve?, 109 HARV. L. REV. 1477 (1996).

~~~~~~~~

By RONALD A. CASS

Dean Emeritus, Boston University School of Law; Chairman, Center for the Rule of Law; President, Cass &

Associates, PC; Senior Fellow, Center for the Study of the Administrative State.

Copyright of Administrative Law Review is the property of American Bar Association and its content may

not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express

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