Libertarian administrative law

University of Chicago Law Review

Volumn 82, Issue 1, 2015, Pages 393-473

  Sunstein, Cass R ^a   Vermeule, Adrian ^b  

^a HARVARD UNIVERSITY   (United States)

^b HARVARD LAW SCHOOL   (United States)

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[No Author keywords available]

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EID: 84925842927     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (192)

1. For a good discussion, see generally Antonin Scalia, Vermont Yankee: The APA, the DC Circuit, and the Supreme Court, 1978 S Ct Rev 345.
2. See generally Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups (Harvard 1965)
3. Burton A. Weisbrod, Joel F. Handler, and Neil K. Komesar, Public Interest Law: An Economic and Institutional Analysis (California 1978)
4. For related ideas on the constitutional side, see generally Bruce Ackerman, Beyond Carolene Products, 98 Harv L Rev 713 (1985).
5. Calvert Cliffs' Coordinating Committee, Inc v United States Atomic Energy Commission, 449 F2d 1109, 1111 (DC Cir 1971).
6. Environmental Defense Fund, Inc v Ruckelshaus, 439 F2d 584, 597 (DC Cir 1971).
7. See United States v Carolene Products Co, 304 US 144, 152 n 4 (1938)
8. To be sure, this famous footnote refers to "discrete and insular minorities," id, rather than diffuse minorities, but the democracy-reinforcing project is the same. See generally Ackerman, 98 Harv L Rev 713 (cited in note 4).
9. See generally Alexander M. Bickel, The Supreme Court and the Idea of Progress (Harper & Row 1970)
10. Alexander M. Bickel, Politics and the Warren Court (Harper & Row 1965).
11. See generally Olson, The Logic of Collective Action (cited in note 4)
12. Weisbrod, Handler, and Komesar, Public Interest Law (cited in note 4).
13. See Christopher C. DeMuth and Douglas H. Ginsburg, White House Review of Agency Rulemaking, 99 Harv L Rev 1075, 1082 (1986) (expressing concern about agency tendencies toward overregulation and arguing that, through Office of Management and Budget review, the president can implement "a broad view of the nation's economic interest")
14. Elena Kagan, Presidential Administration, 114 Harv L Rev 2245, 2264 (2001).
15. See generally Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 Yale L J 31 (1991)
16. For a response, see generally Thomas W. Merrill, Does Public Choice Theory Justify Judicial Activism After All?, 21 Harv J L & Pub Pol 219 (1997).
17. See id at 524 ("[The APA] established the maximum procedural requirements which Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures.... [R]eviewing courts are generally not free to impose [additional procedural rights]."). See also Baltimore Gas & Electric Co v Natural Resources Defense Council, Inc, 462 US 87, 105-06 (1983) (offering a stern warning against excessively stringent arbitrariness review in the same context - nuclear power regulation - as Vermont Yankee).
18. See generally Paul R. Verkuil, Judicial Review of Informal Rulemaking: Waiting for Vermont Yankee II, 55 Tulane L Rev 418 (1981)
19. Richard J. Pierce Jr, Waiting for Vermont Yankee II, 57 Admin L Rev 669 (2005)
20. Jack M. Beermann and Gary Lawson, Reprocessing Vermont Yankee, 75 Geo Wash L Rev 856 (2007).
21. In some of the relevant cases, however, the stakes have been high. See, for example, Environmental Protection Agency v EME Homer City Generation, LP, 134 S Ct 1584, 1593 (2014) (reversing the DC Circuit's decision to strike down an EPA rule designed to "cope with a complex problem: air pollution emitted in one State, but causing harm in other States").
22. On some views, the more accurate term is "classical liberal." See generally, for example, Richard A. Epstein, The Classical Liberal Constitution: The Uncertain Quest for Limited Government (Harvard 2014). There is a continuum of views among the theorists and judges that we will mention; we use "libertarian" for simplicity and to capture the common denominators among these views.
23. For an analysis of second-best approaches to constitutional law and adjudication, see Adrian Vermeule, The System of the Constitution 29-37 (Oxford 2011).
24. See generally Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton 2004).
25. See, for example, Federal Trade Commission v Gratz, 253 US 421, 427-28 (1920) (limiting the FTC's jurisdiction to prosecution of those anticompetitive acts condemned at common law).
26. See, for example, Federal Trade Commission v American Tobacco Co, 264 US 298, 307 (1924) (construing the agency's investigatory powers narrowly)
27. Federal Trade Commission v Raladam Co, 283 US 643, 649 (1931) (holding that the agency had to establish harm to competitors, not merely consumers, to make out a statutory violation).
28. See, for example, American Tobacco, 264 US at 307; Raladam, 283 US at 649. We do not mean to suggest that the Lochner Court consistently decided in a libertarian fashion - only that it occasionally did so. For one perspective, see generally Richard A. Epstein, How Progressives Rewrote the Constitution (Cato 2006).
29. See generally Barnett, Restoring the Lost Constitution (cited in note 26)
30. See also Douglas H. Ginsburg, Book Review, Delegation Running Riot, 18 Reg 83, 84 (Winter 1995).
31. See Barnett, Restoring the Lost Constitution at 32-52 (cited in note 26)
32. Epstein, The Classical Liberal Constitution at 4 (cited in note 24).
33. For an especially detailed account, see Epstein, The Classical Liberal Constitution at 303-82 (cited in note 24)
34. For a vigorous recent discussion, focused on our topic in particular, see generally Philip Hamburger, Is Administrative Law Unlawful? (Chicago 2014).
35. Barnett, Restoring the Lost Constitution (cited in note 26)
36. Ginsburg, Book Review, 18 Reg at 84 (cited in note 30). For a discussion in the same vein, see generally Epstein, The Classical Liberal Constitution (cited in note 24).
37. See Barnett, Restoring the Lost Constitution at 89-117 (cited in note 26).
38. See Epstein, The Classical Liberal Constitution at 17-33 (cited in note 24).
39. Douglas H. Ginsburg, On Constitutionalism, 2002-2003 Cato S Ct Rev 7, 14.
40. Janice Rogers Brown, "A Whiter Shade of Pale": Sense and Nonsense - The Pursuit of Perfection in Law and Politics, Speech to the Federalist Society at The University of Chicago Law School (Apr 20, 2000), archived at http://perma.cc/T2VS-4J7F.
41. Brown, "A Whiter Shade of Pale" (cited in note 48).
42. Brown, "A Whiter Shade of Pale" (cited in note 48).
43. ∗4 (Aug 12, 2000), archived at http://perma.cc/E2MC-3U48.
44. See Eric A. Posner and Adrian Vermeule, Inside or Outside the System?, 80 U Chi L Rev 1743, 1753-54 (2013).
45. ∗3 (Brown dissenting from the denial of rehearing en banc).
46. See Sheldon Goldman, Elliot Slotnick, and Sara Schiavoni, Obama's First Term Judiciary: Picking Judges in the Minefield of Obstructionism, 97 Judicature 7, 29-36 (2013).
47. See Richard L. Revesz, Environmental Regulation, Ideology, and the DC Circuit, 83 Va L Rev 1717, 1717-19 (1997)
48. Frank B. Cross and Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 Yale L J 2155, 2168-69 (1998)
49. Thomas J. Miles and Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U Chi L Rev 823, 825-26 (2006)
50. Thomas J. Miles and Cass R. Sunstein, The Real World of Arbitrariness Review, 75 U Chi L Rev 761, 765-68 (2008).
51. See Revesz, 83 Va L Rev at 1719 (cited in note 83)
52. Cross and Tiller, 107 Yale L J at 2168-69 (cited in note 83).
53. For an overview, see Adrian Vermeule, The Judiciary Is a They, Not an It: Interpretive Theory and the Fallacy of Division, 14 J Contemp Legal Issues 549, 558-59 (2005).
54. See Frank H. Easterbrook, Ways of Criticizing the Court, 95 Harv L Rev 802, 811-13 (1982).
55. See Eric Posner and Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U Chi L Rev 1721, 1721 (2002).
56. J.W. Hampton, Jr, and Co v United States, 276 US 394, 409 (1928).
57. See id at 1735-36; Jerry Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law 44-48 (Yale 2012).
58. See Posner and Vermeule, 69 U Chi L Rev at 1735-36 (cited in note 87)
59. Mashaw, Creating the Administrative Constitution at 44-48 (cited in note 90).
60. See Mashaw, Creating the Administrative Constitution at viii-ix (cited in note 90).
61. See A.L.A. Schechter Poultry Corp v United States, 295 US 495, 551 (1935).
62. See, for example, Whitman v American Trucking Associations, Inc, 531 US 457, 472-76 (2001). See also id at 474 (collecting cases).
63. See, for example, Christopher Demuth, OIRA at Thirty, 63 Admin L Rev 15, 16-21 (2011)
64. Douglas H. Ginsburg and Steven Menashi, Nondelegation and the Unitary Executive, 12 U Pa J Const L 251, 261-64 (2010).
65. See Peter H. Aranson, Ernest Gellhorn, and Glen O. Robinson, A Theory of Legislative Delegation, 68 Cornell L Rev 1, 36-37, 63-67 (1982).
66. See Posner and Vermeule, 69 U Chi L Rev at 1748 (cited in note 87).
67. See Aranson, Gellhorn, and Robinson, 68 Cornell L Rev at 63-65 (cited in note 96).
68. American Trucking Associations, Inc v United States Environmental Protection Agency, 175 F3d 1027, 1034 (DC Cir 1999) ("ATA") (holding that the "EPA has construed §§ 108 & 109 of the Clean Air Act so loosely as to render them unconstitutional delegations of legislative power")
69. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW v Occupational Safety and Health Administration, 938 F2d 1310, 1313 (DC Cir 1991) ("Lockout/Tagout I") (holding that the Occupational Safety and Health Administration's construction of its organic statute was unreasonable "in light of nondelegation principles").
70. See generally Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry (Louisiana State 1969). See also ATA, 175 F3d at 1038 ("If the agency develops determinate, binding standards for itself, it is less likely to exercise the delegated authority arbitrarily.").
71. Id at 474-75, quoting Mistretta v United States, 488 US 361, 416 (1989) (Scalia dissenting).
72. Judge Brown's views about the "intelligible principle" test, and her distance from the mainstream, are best illustrated by her dissent in Michigan Gambling Opposition v Kempthorne, 525 F3d 23 (DC Cir 2008)
73. She urged that the Indian Reorganization Act failed the "intelligible principle" test. Id at 35 (Brown dissenting). Eight justices of the Supreme Court later disagreed. See Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v Patchak, 132 S Ct 2199, 2210-12 (2012). Thanks to Ron Levin for the citation.
74. Id at 676, quoting Lebron v National Railroad Passenger Corp, 513 US 374, 400 (1995).
75. Carter v Carter Coal Co, 298 US 238, 311 (1936) (objecting to delegations to private persons and distinguishing them from delegations to "presumptively disinterested" public officials).
76. See Tumey v Ohio, 273 US 510, 523 (1927).
77. See Bi-Metallic Investment Co v State Board of Equalization, 239 US 441, 445 (1915)
78. Carter Coal suggested that any delegation of rulemaking power to a private actor - allowing it to participate in making rules that govern competitors - would necessarily violate due process principles. See Carter Coal, 298 US at 311 (ascribing this rule to "the very nature of things"). That suggestion, however, does not survive the many later cases that have upheld delegations of this sort. See, for example, Sunshine Anthracite Coal Co v Adkins, 310 US 381, 399 (1940)
79. United States v Rock Royal Co-operative, Inc, 307 US 533, 577-78 (1939)
80. Currin v Wallace, 306 US 1, 15-17 (1939).
81. ∗16-18 (US filed Aug 14, 2014) (available on Westlaw at 2014 WL 4059775).
82. See, for example, Brandenburg v Ohio, 395 US 444, 448-49 (1969) (holding unconstitutional under the First Amendment a state statute that criminalized mere advocacy and assembly to advocate because the statute failed to distinguish mere advocacy from incitement to imminent lawless action).
83. For a discussion, see generally Omri Ben-Shahar and Carl E. Schneider, More Than You Wanted to Know: The Failure of Mandated Disclosure (Princeton 2014).
84. See, for example, R.J. Reynolds Tobacco Co v Food and Drug Administration, 696 F3d 1205, 1222 (DC Cir 2012)
85. National Association of Manufacturers v Securities and Exchange Commission, 748 F3d 359, 372 (DC Cir 2014) ("Conflict Minerals Case"). Professor Sunstein worked on the underlying regulation while serving as the administrator of the Office of Information and Regulatory Affairs during the first term of the Obama administration.
86. Id, quoting Wooley v Maynard, 430 US 705, 714 (1977).
87. For a valuable discussion, see generally Christine Jolls, Product Warnings, Debiasing, and Free Speech: The Case of Tobacco Regulation, 169 J Inst and Theoretical Econ 53 (2013). See also Reynolds Tobacco, 696 F3d at 1225 (Rogers dissenting), quoting 76 Fed Reg at 36696-97 (cited in note 144) (explaining that the FDA's reliance on graphic warnings is based on findings "well-established in the scientific literature").
88. See Central Hudson Gas and Electric Corp v Public Service Commission of New York, 447 US 557, 563 (1980).
89. See, for example, Ben-Shahar and Schneider, More Than You Wanted to Know at 4 (cited in note 140) (describing mandated disclosure as "the principal regulatory answer to some of the principal policy questions of recent decades" and listing several such requirements).
90. See Auer v Robbins, 519 US 452, 461 (1997)
91. quoting Robertson v Methow Valley Citizens Council, 490 US 332, 359 (1989) (holding that an interpretive rule construing the agency's own regulations is "controlling unless 'plainly erroneous or inconsistent with the regulation'")
92. Gonzales v Oregon, 546 US 243, 268 (2006) (holding that, when an interpretive rule construes a regulation that merely restates the terms of a statute and was not promulgated in exercise of congressionally delegated authority, the rule is entitled to Skidmore deference).
93. See, for example, Catholic Health Initiatives v Sebelius, 617 F3d 490, 494 (DC Cir 2010) ("If the rule cannot fairly be seen as interpreting a statute or a regulation, and if... it is enforced, 'the rule is not an interpretive rule exempt from notice-and-comment rulemaking.'").
94. The decisions seem to say, in dicta, that the logic does not extend to interpretive rules that construe the underlying statute itself rather than a prior legislative rule. See, for example, Alaska Professional Hunters Association, Inc v Federal Aviation Administration, 177 F3d 1030, 1034 (DC Cir 1999) ("[A]n agency has less leeway in its choice of the method of changing its interpretation of its regulations than in altering its construction of a statute.") It is not clear, however, why the logic should stop short in this manner, and the issue has not been squarely addressed.
95. See MetWest Inc v Secretary of Labor, 560 F3d 506, 511 & n 4 (DC Cir 2009).
96. See id at 511 ("A fundamental rationale of Alaska Professional Hunters was the affected parties' substantial and justifiable reliance on a well-established agency interpretation "); id at 511 n 4 ("This is a crucial part of the analysis. To ignore it is to misunderstand Alaska Professional Hunters."). 184 720 F3d 966 (DC Cir 2013), cert granted, Perez v Mortgage Bankers Association, 134 S Ct 2820 (2014)
97. Nickols v Mortgage Bankers Association, 134 S Ct 2820 (2014)
98. One of us (Professor Vermeule) is a signatory to an amicus brief on behalf of seventy-two administrative law scholars in support of the certiorari petition in the case. See generally Amicus Curiae Brief of Admimstrative Law Scholars m Support of the Petitions Perez v Mortgage Bankers Association, Nickols v Mortgage Bankers Association, Nos 13-1041, 13-1052 (US filed Mar 26, 2014) (available on Westlaw at 2014 WL 1275189).
99. See, for example, American Mining Congress v Mine Safety and Health Administration, 995 F2d 1106, 1112 (DC Cir 1993) (establishing a four-part test for distinguishing legislative from interpretative rules)
100. American Hospital Association v Bowen, 834 F2d 1037, 1045-46 (DC Cir 1987) (noting that the difference is a "hazy continuum" but suggesting that it turns on whether the agency is "adding substantive content of its own")
101. Jerri's Ceramic Arts, Inc v Consumer Product Safety Commission, 874 F2d 205, 208 (4th Cir 1989) ("[T]ests distinguishing legislative and interpretive rule-making are largely concerned with intent and effect.")
102. Hoctor v United States Department of Agriculture, 82 F3d 165, 167 (7th Cir 1996).
103. See, for example, Natural Resources Defense Council, Inc v Nuclear Regulatory Commission, 547 F2d 633, 653 (DC Cir 1976), revd, Vermont Yankee, 435 US 519.
104. See generally, for example, American Equity Investment Life Insurance Co v Securities and Exchange Commission, 613 F3d 166 (DC Cir 2010)
105. Chamber of Commerce of the United States v Securities and Exchange Commission, 412 F3d 133 (DC Cir 2005)
106. ∗3 (European Corporate Governance Institute, Law Working Paper No 234/2014), archived at http//permacc/QE92-6TJ4.
107. See Investment Co Institute v Commodity Futures Trading Commission, 720 F3d 370, 377-78 (DC Cir 2013).
108. See, for example, Grant M. Hayden and Matthew T. Bodie, The Bizarre Law and Economics of Business Roundtable v. SEC, 38 J Corp L 101, 102 (2012)
109. (criticizing Business Roundtable as a judicial "misapplication of law and economics principles"); Case Comment, DC Circuit Finds SEC Proxy Access Rule Arbitrary and Capricious for Inadequate Economic Analysis, 125 Harv L Rev 1088, 1095 (2012)
110. (criticizing Business Roundtable as "impos[ing] unattainable standards that bar agency action"); Bruce Kraus and Connor Raso, Rational Boundaries for SEC Cost-Benefit Analysis, 30 Yale J Reg 289, 293 (2013) (calling Business Roundtable's criticism of the SEC's empirical economic analysis "unfounded").
111. Compare, for example, Citizens for Safe Power, Inc v Nuclear Regulatory Commission, 524 F2d 1291, 1301 (DC Cir 1975)
112. (upholding the NRC's issuance of an operating license for a nuclear plant and not requiring the agency to implement additional procedures), with Natural Resources Defense Council v Nuclear Regulatory Commission, 547 F2d at 653 (reversing the NRC's issuance of an operating license and requiring the agency to implement additional procedures).
113. Id at 143, quoting Public Citizen v Federal Motor Carrier Safety Administration, 374 F3d 1209, 1221 (DC Cir 2004).
114. ∗24-26 (cited in note 206).
115. One of us is highly sympathetic to this decision. See generally Cass R. Sunstein, Valuing Life: A Plea for Disaggregation, 54 Duke L J 385 (2004).
116. ∗13 (DC Cir filed Feb 25, 2011) (available on Westlaw at 2011 WL 2014799) (summarizing studies consulted by the agency).
117. See Baltimore Gas & Electric Co v Natural Resources Defense Council, Inc, 462 US 87, 103 (1983)
118. More generally, under Motor Vehicle Manufacturers Association of the United States, Inc v State Farm Mutual Automobile Insurance Co, 463 US 29 (1983) ("State Farm"), an agency rule is arbitrary and capricious if, among other things, it is "so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Id at 43. This implies that, for questions on which experts differ, the agency is permitted to select any reasonable viewpoint, so long as it articulates a "rational connection between the facts found and the choice made." Id at 52. See also id ("It is not infrequent that the available data do not settle a regulatory issue, and the agency must then exercise its judgment in moving from the facts and probabilities on the record to a policy conclusion.").
119. See generally Cass R. Sunstein, The Limits of Quantification, 102 Cal L Rev 1369 (2014).
120. Kraus and Raso, 30 Yale J Reg at 292 (cited in note 211).
121. See Citizens to Preserve Overton Park, Inc v Volpe, 401 US 402, 416 (1971) (holding that an agency's failure to consider relevant factors may indicate that its decision was arbitrary and capricious).
122. See, for example, Safe Drinking Water Act Amendments of 1996, Pub L No 104-182, 110 Stat 1613, 1621, codified at 42 USC § 300g-1(b)(3)(C)(i)(I) (requiring agency findings on "quantifiable and nonquantifiable" health risks and benefits); Unfunded Mandates Reform Act of 1995 § 423(c)(2), Pub L No 104-4, 109 Stat 48, 54, codified at 2 USC § 658b(c)(2) (requiring "a qualitative, and if practicable, a quantitative assessment of costs and benefits anticipated from the Federal mandates"); Unfunded Mandates Reform Act § 202(a)(2), 109 Stat at 64, codified at 2 USC § 1532(a)(2) (requiring "qualitative and quantitative assessment of the anticipated costs and benefits"); Clean Air Act Amendments of 1990, Pub L No 101-549, 104 Stat 2399, 2691, codified as amended at 42 USC § 7612(a) (requiring the agency to "consider the costs, benefits and other effects associated with compliance with each standard issued"). Indeed, Congress can be extremely precise in specifying different forms of cost-benefit analysis within the same statute. For example, the Clean Water Act specifies several forms of cost-benefit analysis. Compare 33 USC § 1314(b)(1)(B) (requiring "consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved"), with 33 USC § 1314(b)(4)(B) (requiring "consideration of the reasonableness of the relationship between the costs of attaining a reduction in effluents and the effluent reduction benefits derived") (emphasis added), with 33 USC § 1314(b)(2)(B) (requiring consideration only of "the cost of achieving such effluent reduction," and not requiring any cost-benefit comparison). Thanks to Jeff Gordon for providing the first two citations. See Jeffrey N. Gordon, The Empty Call for Benefit-Cost Analysis in Financial Regulation, 43 J Legal Stud S351, S367 n 10 (June 2014).
123. ∗20-22 (cited in note 206)
124. Nor have executive orders done so; as an "independent" agency, the SEC is exempt from the major cost-benefit orders. See Executive Order 12,866 § 3(b), 58 Fed Reg 51735 (1993). See also Marshall J. Breger and Gary J. Edles, Established by Practice: The Theory and Operation of Independent Federal Agencies, 52 Admin L Rev 1111, 1201 (2000)
125. The scare quotes around "independent" are explained in Adrian Vermeule, Conventions of Agency Independence, 113 Colum L Rev 1163, 1166-67 (2013)
126. See also generally Note, The SEC Is Not an Independent Agency, 126 Harv L Rev 781 (2013).
127. There is an open question whether Chevron deference applies to an agency's interpretation of its organic statute with respect to these issues. After the Court's recent decision in City of Arlington, Texas v Federal Communications Commission, 133 S Ct 1863 (2013), the answer should be that Chevron deference does apply. We bracket that issue for purposes of the current discussion, however. The ECCF obligation, even read de novo and without deference to the agency, does not plausibly impose a presumptive requirement of quantification.
128. See Matthew D. Adler and Eric A. Posner, Rethinking Cost-Benefit Analysis, 109 Yale L J 165, 167 (1999) ("Many law professors, economists, and philosophers believe that [cost-benefit analysis (CBA)] does not produce morally relevant information and should not be used in project evaluation. A few commentators argue that the information produced by CBA has some, but limited, relevance."). See also id at 170-72 & nn 10-18 (discussing the history of cost-benefit analysis and collecting works).
129. Feasibility studies have been used by many agencies. See generally, for example, Vital Steps: A Cooperative Feasibility Study Guide (US Department of Agriculture Rural Business-Cooperative Service, Dec 2010), archived at http://perma.cc/MS9C-PSB7
130. A Guide to Developing and Documenting Cost Estimates During the Feasibility Study (EPA and US Army Corps of Engineers, July 2000), archived at http://perma.cc/KE7Z-8VPC.
131. See generally Frank Ackerman and Lisa Heinzerling, Priceless: On Knowing the Price of Everything and the Value of Nothing (New Press 2004).
132. See Concrete Pipe & Products of California, Inc v Construction Laborers Pension Trust for Southern California, 508 US 602, 622-23 (1993): [A standard of review is] customarily used to describe, not a degree of certainty that some fact has been proven in the first instance, but a degree of certainty that a factfinder in the first instance made a mistake in concluding that a fact had been proven under the applicable standard of proof.
133. ∗7 (forthcoming 2015), archived at http://perma.cc/UJT2-TL9Q.
134. See Natural Resources Defense Council, Inc v United States Nuclear Regulatory Commission, 685 F2d 459, 478-85 (DC Cir 1982), revd, Baltimore Gas & Electric, 462 US 87.
135. Commodity Futures Trading Commission, Commodity Pool Operators and Commodity Trading Advisors: Compliance Obligations, 77 Fed Reg 11252 (2012).
136. Investment Co Institute, 720 F3d at 379. On the general issue of nonquantifiable benefits, see generally Sunstein, The Limits of Quantification, 102 Cal L Rev 1369 (cited in note 237).
137. The putative distinction is that, in Business Roundtable, the SEC had failed to explain why its new rule was necessary in light of extant regulation. See Investment Co Institute, 720 F3d at 378. See also Gordon, 43 J Legal Stud at S371-73 (cited in note 249). This is unconvincing because it is a post hoc redescription of the rationale of Business Roundtable, in which the central point was not regulatory overlap with extant rules but the SEC's failure either to quantify fully the benefits of its regulation (which was impossible) or to explain why the benefits could not be quantified (which the SEC had actually done, as explained earlier). See Business Roundtable, 647 F3d at 1148-51. See also id at 1154 (holding that, because the rule was arbitrary and capricious on its face due to the improper cost-benefit analysis, the rule was "assuredly invalid as applied specifically to investment companies," but then going on to explain that the rule as applied to investment companies would also be invalid because the SEC had failed to explain why the rule was necessary in light of the extant regulation).
138. See Universal Camera Corp v National Labor Relations Board, 340 US 474, 485-87 (1951) (Frankfurter) (suggesting that Congress had expressed a "mood" in enacting the "substantial evidence" test).
139. Another recent data point is the Conflict Minerals Case, the decision that invalidated a congressionally mandated SEC disclosure regulation on commercial speech grounds. See text accompanying notes 153-68. Before reaching the commercial speech issue, the panel - Judge Sentelle writing for himself and Judge Randolph, with a partial concurrence by Judge Srinivasan - upheld the SEC rule against an arbitrariness attack. Conflict Minerals Case, 748 F3d at 365-70. The opinion cited Investment Co Institute for the proposition that "[a]n agency is not required 'to measure the immeasurable,' and need not conduct a 'rigorous, quantitative economic analysis' unless the statute explicitly directs it to do so." Conflict Minerals Case, 748 F3d at 369, quoting Investment Co Institute, 720 F3d at 379. On several grounds, however, it is unclear whether this portends a retrenchment. First, the panel did, after all, invalidate the regulation on constitutional grounds, Conflict Minerals Case, 748 F3d at 370-73, so the decision may actually portend that libertarian administrative law is moving into an even more aggressive phase, in which the label "free speech" is used as a substitute for stringent arbitrariness review and for substantive due process protection of property rights and economic interests. Second, it would be open to a future panel to distinguish the Conflict Minerals Case as a case in which the underlying regulation was itself explicitly mandated by Congress, in Dodd-Frank. See id at 363, citing 15 USC §§ 78m(p), 78m (note). Indeed, Congress itself had already found that the benefits of the regulation - unquantifiable benefits - justified the costs. See Conflict Minerals Case, 748 F3d at 369. In such a case, arbitrariness review might be relaxed or even suspended. Bracketing questions of constitutional arbitrariness review under due process, such review is extremely deferential as to administrative rulemaking. See Pacific States Box & Basket Co v White, 296 US 176, 185-86 (1935).
140. See Scalia, 1978 S Ct Rev at 372 (cited in note 2). "The pattern of dicta, alternate holdings, and confused holdings out of which the D.C. Circuit's principle of APA hybrid rulemaking so clearly and authoritatively emerged had the effect, if not the purpose, of assuring compliance below while avoiding accountability above.").
141. See generally Easterbrook, 95 Harv L Rev 802 (cited in note 86).
142. See generally Cass R. Sunstein, Standing and the Privatization of Public Law, 88 Colum L Rev 1432 (1988).
143. See Sunstein, 88 Colum L Rev at 1438 (cited in note 285).
144. Association of Data Processing Service Organizations, Inc v Camp, 397 US 150, 152-53 (1970).
145. See, for example, Lujan v Defenders of Wildlife, 504 US 555, 571-78 (1992) (dismissing the argument that, absent actual injury, agency action or inaction grants a "procedural injury" conferring standing)
146. Federal Election Commission v Akins, 524 US 11, 21-25 (1998) (holding that voters have standing to sue the Federal Election Commission)
147. Friends of the Earth, Inc v Laidlaw Environmental Services (TOC), Inc, 528 US 167, 181 (2000) ("An association has standing to bring a suit on behalf of its members when its members would otherwise have standing to sue in their own right.")
148. See also Charles A. Wright and Mary Kay Kane, § 13 "Case or Controversy" - Standing to Litigate, 20 Fed Prac and Proc Deskbook § 13 (Apr 2011).
149. For cases involving similar facts, see Lujan, 504 US at 560; Sierra Club v Morton, 405 US 727, 734-35 (1972).
150. Stilwell v Office of Thrift Supervision, 569 F3d 514, 518 (DC Cir 2009) (holding that a private investor has standing to challenge a decision by the Office of Thrift Supervision, since economic harm was "substantially probable").
151. See, for example, Clarke v Securities Industry Association, 479 US 388, 401-03 (1987).
152. See, for example, Honeywell International, Inc v Environmental Protection Agency, 705 F3d 470, 472 (DC Cir 2013) (holding that a regulated entity has standing to challenge the EPA's approval of competitors' allowance transfers)
153. Holistic Candlers and Consumers Association v Food and Drug Administration, 664 F3d 940, 943 (DC Cir 2012) (holding that regulated entities have standing to challenge FDA actions that would allegedly outlaw the manufacture of their products)
154. Lake Carriers' Association v Environmental Protection Agency, 652 F3d 1, 5 n 2 (DC Cir 2011) (holding that trade associations have standing to challenge the EPA permit system)
155. Lichoulas v Federal Energy Regulatory Commission, 606 F3d 769, 774 (DC Cir 2010) (holding that a regulated entity has standing to challenge FERC's termination of a license to operate a hydropower project)
156. Affum v United States, 566 F3d 1150, 1158 (DC Cir 2009) (holding that a regulated entity has standing to challenge a decision of the Food and Nutrition Service)
157. Alvin Lou Media, Inc v Federal Communications Commission, 571 F3d 1, 7 (DC Cir 2009) (holding that a radio station applying for a license has standing to challenge the FCC's denial of reconsideration of the application)
158. Comcast Corp v Federal Communications Commission, 579 F3d 1, 6 (DC Cir 2009) (holding that regulated cable companies have standing to challenge an FCC rule).
159. See, for example, Japan Whaling Association v Cetacean Society, 478 US 221, 230 n 4 (1986).
160. Compare, for example, Northeastern Florida Chapter of Associated General Contractors of America v City of Jacksonville, Florida, 508 US 656, 666 (1993) (holding that a plaintiff challenging a municipal procurement policy need only show that the policy denied him the chance to compete on an equal footing, not that he would have actually received the benefit absent the policy)
161. with Allen v Wright, 468 US 737, 755 (1984) (holding that the plaintiffs lacked standing because they failed to allege an "injury suffered as a direct result of having personally been denied equal treatment").
162. See Charles H. Koch and Richard Murphy, 4 Administrative Law and Practice § 12:10-14 (West 3d ed 2010).
163. See, for example, Ben Jones, The Libertarian Case against the Death Penalty (Libertarianism.org, Oct 24, 2013), archived at http://perma.cc/3R7H-YSJ5
164. Zenon Evans, Ron Paul Endorses Anti-Death Penalty Group (Reason.com, Aug 7, 2013), archived at http://perma.cc/EB7N-3LN9
165. But see Murray N. Rothbard, The Libertarian Position on Capital Punishment (Mises Institute, July 13, 2010), archived at http://perma.cc/LN57-WZFV ("[W]e advocate capital punishment for all cases of murder, except in those cases where the victim has left a will instructing his heirs and assigns not to levy the death penalty on any possible murder.").
166. Editorial, 4/22: Conservatives and Death Penalty (Lincoln J Star, Apr 21, 2013), archived at http://perma.cc/T9LQ-9APB.
167. For other recent examples, see Cohen v United States, 650 F3d 717, 722-24 (DC Cir 2011) (en banc) (finding reviewability because IRS notice was a substantive rule that constrained its own discretion)
168. Association of Irritated Residents v Environmental Protection Agency, 494 F3d 1027, 1028 (DC Cir 2007) (Sentelle) (denying - over Judge Rogers's dissent - community and environmental groups' petition for review of EPA agreements with noncompliant animal-feeding operations).
169. See Dunlop v Bachowski, 421 US 560, 566 (1975).
170. See generally Nathaniel L. Nathanson, Some Comments on the Administrative Procedure Act, 41 Ill L Rev 368 (1946). See also id at 419 ("[T]he compromises worked out in the drafting of the Act between advocates of uniformity in administrative procedure and the defenders of diversity and flexibility, did not always result in a product that is crystal clear.").
171. See Scalia, 1978 S Ct Rev at 363, 406 (cited in note 2)
172. Adrian Vermeule, Superstatutes (New Republic Online, Oct 26, 2010), archived at http://perma.cc/Y555-RXJ3
173. See also generally Kathryn Kovacs, Superstatute Theory and Administrative Common Law, 90 Ind L J (forthcoming 2015), archived at http://perma.cc/N6D3-RT2R.
174. Calvert Cliffs' Coordinating Committee, Inc v United States Atomic Energy Commission, 449 F2d 1109, 1111 (DC Cir 1971).
175. See Ronald Dworkin, Law's Empire 176-275 (Harvard 1986).
176. See generally, for example, Environmental Protection Agency v EME Homer City Generation, 134 S Ct 1584 (2014).
177. See, for example, Center for Biological Diversity v Environmental Protection Agency, 749 F3d 1079, 1086-89 (DC Cir 2014).
178. The Supreme Court recently unanimously rejected the SEC's position regarding the statute of limitations for bringing enforcement actions. See Gabelli v Securities and Exchange Commission, 133 S Ct 1216, 1224 (2013).
179. See generally, for example, Wickard v Filburn, 317 US 111 (1942).
180. See, for example, Richard A. Epstein, The Proper Scope of the Commerce Power, 73 Va L Rev 1387, 1387-88 (1987).
181. See, for example, United States v Morrison, 529 US 598, 601-02 (2000) (invalidating the Violence against Women Act's private right of action).
182. See, for example, Barnett, Restoring the Lost Constitution at 317 (cited in note 26)
183. Randy E. Barnett, Limiting Raich, 9 Lewis & Clark L Rev 743, 750 (2005) ("[T]hose who admired Lopez and Morrison... hoped these cases presaged a broader New Federalism revolution.").
184. For an example of the press coverage on Republicans filibustering President Obama's nominees, see Burgess Everett, Republicans Block Third Judicial Appointee (Politico, Nov 18, 2013), archived at http://perma.cc/5CBG-QDW6.
185. See Janet Hook and Kristina Peterson, Democrats Rein in Senate Filibusters, Wall St J A1 (Nov 22, 2013).
186. See generally Verkuil, 55 Tulane L Rev 418 (cited in note 21)
187. Pierce, 57 Admin L Rev 669 (cited in note 21
188. Beermann and Lawson, 75 Geo Wash L Rev 856 (cited in note 21).
189. See generally, for example, Epstein, The Classical Liberal Constitution (cited in note 24).
190. See generally, for example, Natural Resources Defense Council, Inc v United States Nuclear Regulatory Commission, 685 F2d 459 (DC Cir 1982)
191. Natural Resources Defense Council, Inc v United States Nuclear Regulatory Commission, 547 F2d 633 (DC Cir 1976)
192. Federal Trade Commission v Gratz, 253 US 421 (1920).