Mending Holes in the Rule of (Administrative) Law

Evan J. Criddle[*]

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The past decade has witnessed a surge of interest in Carl Schmitt’s controversial assertion that the rule of law inevitably bends under the demands of state necessity during national emergencies.  According to Schmitt, legal norms cannot constrain sovereign discretion during emergencies because “the precise details of an emergency cannot be anticipated” in advance.[1]  The sovereign must therefore possess unfettered discretion to determine both “whether there is an extreme emergency” and “what must be done to eliminate it.”[2]

Few legal scholars have embraced Schmitt’s theory of emergencies with the enthusiasm and sophistication of Adrian Vermeule, the John H. Watson, Jr. Professor of Law at Harvard Law School.  In an article published recently in the Harvard Law Review, Vermeule argues that American administrative law is fundamentally “Schmittian” in the sense that it permits federal agencies to operate outside the constraints of administrative procedure and meaningful judicial review during emergencies.[3]  Vermeule contends that the federal Administrative Procedure Act (APA) is replete with procedural exceptions, which generate “black holes”—zones where federal agencies are free to act outside the constraints of legal order.[4]  In addition, he suggests that federal courts manipulate flexible legal standards to accord heightened deference to federal agencies during national crises, transforming standards such as “reasonableness”[5] and “good cause”[6] into “grey holes”—legal devices which preserve the façade, but not the reality, of the rule of law.[7]  Far from criticizing these gaps in federal administrative law, Vermeule accepts black and grey holes as institutional inevitabilities, and dismisses proposals to extend the rule of law to all administrative action as a “hopeless fantasy.”[8]  

Evolutionary Due Process

Louis J. Virelli III[*]

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I.  Introduction

The issue of evolution instruction in American public schools is becoming increasingly complex, both legally and politically.  Until recently, the controversy over whether and how to teach evolution in public school science classes has been singularly focused on the constitutional limits of government support for religion under the First Amendment’s Establishment Clause.  Current measures in Louisiana and Texas, however, represent a shift toward a new “adjudicative model” for addressing questions of evolution instruction.  This adjudicative model permits individual educators to treat evolution issues on a case-by-case basis, which, in turn, implicates a new constitutional issue in the evolution education debate: procedural due process.  By creating powerful disincentives for anti-evolutionist policymakers, procedural due process concerns could affect the future of evolution education even more profoundly than does the Establishment Clause.  This Essay explores the relationship between evolution education policy and procedural due process by first identifying and defining the adjudicative model.  It then considers the model’s constitutional ramifications for evolution instruction, concluding that this new approach to policymaking introduces procedural due process concerns that radically alter the legal and political calculus of the debate over evolution education.

Keeping the Label Out of the Case

Mark Herrmann[*] & Pearson Bownas[**]

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Introduction

The FDA approves prescription drugs and medical devices for only the specific uses indicated in the product labeling that the manufacturer submits in the approval process.  A physician may determine, however, that a use not indicated in the FDA-approved labeling—an “off-label” use—would benefit a patient.  This Article argues that in medical malpractice cases involving an off-label use, the product’s label should not be admitted as evidence of either the standard of care or the physician’s alleged breach of that standard.

Massachusetts v. EPA Heats Up Climate Policy No Less Than Administrative Law: A Comment on Professors Watts and Wildermuth

By Jonathan H. Adler[*]

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Massachusetts v. EPA[1] is easily the Supreme Court’s most important environmental law decision in well over a decade.  By a vote of 5–4, the Supreme Court set the Environmental Protection Agency (EPA) on a course to regulate greenhouse gas emissions and potentially remade much of administrative law.[2]  While the Supreme Court has been reluctant to authorize broad federal regulatory authority in other areas, the Massachusetts majority readily unearthed expansive yet untapped authority to control emissions of the most ubiquitous byproduct of modern industry.  It is no wonder environmental advocates greeted the decision with cheer.

In their essay, Massachusetts v. EPA: Breaking New Ground on Issues Other than Global Warming,[3] Professors Kathryn A. Watts and Amy J. Wildermuth have presented a thoughtful analysis of the Supreme Court’s handiwork in Massachusetts v. EPA.  They are correct that the decision potentially paves new ground in administrative law, particularly with regard to state standing.  The Court’s approach to review of agency decisions to decline rulemaking petitions is also potentially significant, but less ground-breaking than Watts and Wildermuth suggest.  In the context of climate change policy, their assessment of the Court’s decision is farthest from the mark, however, for the Massachusetts majority did everything it could, given the posture of the case, to ensure federal regulation of greenhouse gases from motor vehicles and other emission sources.  It is true, as a technical matter, that “the Court’s opinion did not order the EPA to regulate with respect to climate change.”[4]  Yet there should be little doubt that the Court’s judgment in the case gives the Agency little option but to regulate, and not just emissions from new motor vehicles.  Unless the relevant provisions of the Clean Air Act are revised by Congress in new climate change legislation, Massachusetts v. EPA will mean greenhouse gas emission limits on industrial facilities and the likely regulation of carbon dioxide as a criteria air pollutant.[5]

Massachusetts v. EPA: Breaking New Ground on Issues Other Than Global Warming (Part II)

By Kathryn A. Watts[*] and Amy J. Wildermuth[**]

[Editor's Note:  This week we have the conclusion of this Colloquy Essay; the first section was published here last week.  A pdf of the full essay can be downloaded here, and a full version in html form is available here.] 

II.  Ramped Up Review of Rulemaking Denials

A second aspect of Massachusetts that we predict will likely have long-term implications for administrative law involves the Court’s willingness to thoroughly scrutinize the reasons that the EPA offered for denying the petition to regulate greenhouse gases.  The D.C. Circuit (which is by far the most important court in the country when it comes to shaping administrative law) established years ago that courts may review inaction in the rulemaking context—albeit only through a highly deferential and very narrow version of “arbitrary and capricious” review.[68]  The D.C. Circuit has explained that constrained review, rather than searching review, is appropriate because the decision whether to engage in rulemaking boils down to a legislative judgment that may turn on a variety of policy considerations ill-suited to judicial review, such as resource allocation concerns.[69]

Despite the D.C. Circuit’s well-settled views on the topic, the Supreme Court prior to Massachusetts had never explicitly weighed in on whether an agency’s denial of a rulemaking petition is subject to review, and if so, what standard of review should apply.[70]  The Supreme Court’s pronouncements on the topic in Massachusetts accordingly merit attention.  In a nutshell, the Court—following the lead of the D.C. Circuit—declared that refusals to promulgate rules are susceptible to judicial review but that such review is limited and very deferential.[71]