Gray Matters

On June 11, 1946, President Truman signed the Administrative Procedure Act (APA) into law, and it was intended to be “a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated in one way or another by agencies of the Federal Government,” according to its lead sponsor in the Senate. If we were to redesign the APA for today’s version of the administrative....

“Do NEPA (the National Environmental Policy Act) and other permitting requirements doom green energy and infrastructure plans?” That was the title of a recent webinar, organized by the Law & Economics Center at George Mason University’s Antonin Scalia Law School. The Gray Center’s Adam White moderated a discussion with Mario Loyola (Competitive Enterprise Institute) and Andrew Rosenberg (Union...

For the last forty years, courts have been especially deferential to federal agencies’ claims of scientific expertise. And in the last year, we have seen the Supreme Court grapple repeatedly with questions of administrative decisions related to managing the Covid-19 pandemic. How much deference should courts afford agencies on scientific and technical matters? This was among the subjects discussed...

The Paycheck Protection Program was the single largest component of the federal pandemic relief legislation passed in March of 2020. Since then, a debate has developed about the program’s speed-accuracy trade-off, exposing the challenges administrators face when they’re responsible for administering vague statutes in emergency circumstances with little or no information up front. Prof. Source

Amid the Covid-19 crisis, Operation Warp Speed helped to develop vaccines with astonishing speed. But even with a fast-tracked FDA process, there still remain significant questions about risk, liability, and intellectual property. These are the subjects of two new Gray Center working papers by Professors Sam Halabi of the University of Missouri and Professor Kristen Osenga of the University of......

Executive orders are not a new tool of presidential power — all presidents have used them, and some much more than others. But in recent decades they seem to have become a more significant and prominent aspect of American government. In today’s episode, Bowdoin College’s Andrew Rudalevige and the Gray Center’s Adam White describe the processes of E.O. development, with special focus on the Office....

At least five Supreme Court justices seem interested in reconsidering the current version of the “Nondelegation Doctrine.” And their recent judicial opinions have inspired waves of new scholarship for and against judicial reform. Last spring, the Gray Center invited scholars to workshop new papers on the nondelegation doctrine; now those articles are online in our Working Paper Series... Source

The Biden Administration faces immensely consequential policy choices on questions of financial regulation—from the proper regulatory standards to apply to banks for the sake of safety, soundness, and systemic risk; to cryptocurrencies; to the use of financial regulatory agencies to drive policy on non-financial issues. And as the Gamestop/Robinhood saga highlighted, new technologies can radically...

Throughout his presidential campaign, Joe Biden called for national reforms to police practices and civil rights. Immediately after the election, his transition team highlighted Racial Equity as one of its four policy priorities. And right after his inauguration, he signed a set of initial executive actions focused generally on discrimination. Yet at the same time, he has argued that the focus......

From George Washington’s administration onward, the federal government’s power over financial markets and banks has always occupied a nebulous corner of American constitutional government. Recently the Gray Center posted three new working papers exploring different aspects of financial and monetary regulation. In this podcast, Adam White chats with two of the authors: Columbia Law School’s Lev......

“Tech policy” is a broad and nebulous label. But from antitrust to national security to social media moderation, recent years have been filled with difficult questions about federal law and policy, and myriad proposals for major new regulatory initiatives surrounding new technologies and big tech companies. Moreover, these debates scramble familiar partisan and ideological lines. Source

Promptly after the election, President-elect Joe Biden’s official “transition” team announced that climate change would be one of the new administration’s top four policy priorities. The transition’s website listed a variety of familiar and new ways in which the Biden administration intends to grapple with this issue. And, of course, this is just one of several issues of energy and environmental.....

Over the last four years, the Trump administration continued the longstanding framework for OIRA regulatory oversight, but it also developed new oversight tools, such as the new regulatory budgeting framework of Executive Order 13771. How will the new Biden Administration structure its own frameworks for regulatory oversight? What old and new tools will it keep? And what new innovations might it.....

In 2008, Michael Livermore and Richard Revesz wrote Retaking Rationality, a book arguing that cost-benefit analysis of regulations should be recognized not as an anti-regulatory weapon, but rather a nonideological tool for promoting good government. Now they return with a new book, Reviving Rationality, which analyzes developments since 2008, and proposes further reforms for cost-benefit analysis....

Governments make rules. But governments often grant exemptions from those rules, either when the rules are written or in the ways they are enforced. And those exemptions are the subject of a new article: “ Unrules” by Cary Coglianese, Gabriel Scheffler, and Daniel Walters. Professors Coglianese and Walters are our guests today. They describe the two main categories of unrules (“dispensations” and....

The Supreme Court’s recent decision in Seila Law v. CFPB, and the upcoming case of Collins v. Mnuchin, return our attention to the Constitution’s allocation of powers among the President and Congress—and to the famous cases nearly a century ago when the Supreme Court tried to grapple with those issues amid the rise of the modern administrative state. As it happens, Professor Robert Post of the......

Last summer, the Supreme Court ended its year’s work with significant decisions involving administrative agencies. This new year now underway is set to include major cases involving agency structure and independence; transparency; and a host of other issues. To discuss these issues and broader themes of administrative governance, the Gray Center’s annual Supreme Court preview featured three... Sou...

Congress’s enactment of the Clean Air Act fifty years ago was meant to change our environmental impacts — but did it change Congress, too? That is the question that Prof. Frank Manheim of George Mason University’s Schar School of Public Policy asks in his new working paper, “ Transformation of Congressional Lawmaking by the Clean Air Act of 1970 and Its Effects.” In this episode, part of the Gray....

The executive branch’s bureaucracy gets a lot of attention. But Congress’s bureaucracy gets much less—yet it is extremely important. In a new Gray Center working paper titled “ The Congressional Bureaucracy,” Professors Abbe Gluck and Jesse Cross analyze several parts of Congress’s bureaucracy—some well-known, like the Government Accountability Office, and others less so, like the Office of Law......

We often think of modern cost-benefit analysis as being a requirement primarily of executive orders, not statutes. Needless to say, Executive Order 12291 and 12866, and other executive orders and presidential documents, are of central importance. But Congress has done much on matters of cost-benefit analysis, too, often requiring agencies to consider costs and benefits... Source

In 1994, Republicans won control of the House of Representatives for the first time in 50 years. Upon taking office, Speaker Newt Gingrich and his colleagues undertook major institutional reforms. What do those reforms tell us about conservatives’ modern views of the Constitution’s first branch of government, and how did those reforms affect Congress’s relationship to the President and... Source

Administrative Law scholars think of 1946 as the year that Congress enacted the Administrative Procedure Act. But too often we neglect another major law that Congress enacted in that year: the Legislative Reorganization Act. The LRA was intended to position Congress for long-term management of the administrative state. But its proponents were disappointed to see major provisions dropped from the.....

Today’s guest is Professor Joshua Wright — a University Professor of Law at George Mason University, Director of the law school’s Global Antitrust Institute, a former FTC Commissioner, and one of the nation’s leading scholars of antitrust law and policy. Professor Wright and Jan Rybnicek recently co-authored an essay on recent calls to use antitrust law to regulate or break up “big tech” companies...

On September 24, 2020, the Gray Center co-hosted a live webinar, “After 50 Years, What Is the National Environmental Policy Act Today?” in partnership with Antonin Scalia Law School’s Society for Environmental and Energy Law. On January 1, 1970, President Nixon signed the National Environmental Policy Act (NEPA) into law. A briefly worded but powerful law, NEPA requires federal agencies to... Sour...

Today’s guest is Professor Adam Mossoff, a leading scholar of intellectual property and Co-Founder of Scalia Law’s Center for the Protection of Intellectual Property (CPIP). Three years ago, CPIP and the Gray Center co-hosted a major conference on the Patent Trial and Appeal Board (PTAB), a new regulatory body empowered to revoke companies’ patents through an administrative process instead of a......