Browsing by Author "Murphy, Richard W."
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Item Abandon Chevron and Modernize Stare Decisis for the Administrative State(Alabama Law Review, 2017) Murphy, Richard W.Critics including Justices Gorsuch and Thomas have recently condemned the Chevron doctrine, which requires courts to defer to an agency’s reasonable construction of a statute that it administers, for undermining separation of powers and the rule of law. The House of Representatives, not to be left behind, has passed the Separation of Powers Restoration Act of 2016, which commands courts to conduct de novo review of agency statutory constructions. The Chevron doctrine should indeed be abandoned, but not because it transfers tyrannical power to the executive. Over the last thirty years, an immense amount of confusing case law has evolved detailing whether and how to apply the Chevron two step—which may have one, two, three, or more steps. Viewed as a means to fine-tune deference, this effort has been largely a waste. Notwithstanding overheated charges, there is little reason to think that applying Chevron, as opposed to a supposedly tighter standard of review, such as Skidmore deference, is frequently outcome determinative in significant cases. Although Chevron, with monumental irony, fails as a deference doctrine, it should not be abandoned without replacement because it serves the important function of protecting agencies’ ability to change how they construe their enabling acts over time to reflect new learning. Rather than protect agency flexibility indirectly through the Chevron doctrine, however, it would be far better for courts to accomplish this end directly by limiting their opinions’ precedential force. More specifically, courts reviewing agency statutory constructions should, contra Chevron, pick the constructions they deem best. They should also, however, refrain from giving binding horizontal stare decisis force to their precedents when reviewing later agency efforts to adopt different statutory constructions. Instead, when a court confronts a choice between following its precedent or affirming an agency’s new construction, the court should adopt whichever one is better without stare decisis distorting the inquiry. This transformation of Chevron deference into a judicial duty to keep an open mind would not change many case outcomes, but it would greatly simplify an absurdly complex corner of administrative law.Item Arbitrariness Review Made Reasonable: Structural and Conceptual Reform of the Hard Look(Notre Dame Law Review, 2016) Shapiro, Sidney A.; Murphy, Richard W.Designing procedures for legislative rulemaking, a dominant feature of modern governance, has spawned one of the most contentious debates in all of administrative law. Compounding the stakes, over the last fifty years, the courts, with help from Congress and presidents, have relentlessly made rulemaking procedures more burdensome, impeding efforts to preserve the environment, protect workers, and forestall financial collapse, among other important agency missions. Review for "arbitrariness" is the source of most of the burdens that courts have imposed on agency rulemaking. Modern doctrine, often called "hard look review," requires an agency to have, at the moment it adopts a rule, a justification strong enough to satisfy the demands of "reasoned decisionmaking." As a corollary, an agency can never rely on post hoc justifications to save a rule. This requirement of reasoned decisionmaking might itself sound eminently reasonable. As implemented in rulemaking, however, its demands are highly artificial, force agencies to waste time and resources on developing impenetrable explanations for their rules, encourage regulated parties to bloat the process, and increase the risk of judicial vacation of reasonable rules. To correct these problems, courts should allow agencies to defend their rules based on post hoc justifications-so long as they are based on information exposed to public scrutiny during the rulemaking process itself. This proposal may sound like administrative law heresy, but it has surprisingly strong roots both in historical and current practice. Adopting it would enhance agency effectiveness without undermining other important values, notably including accountability, fairness, and accuracy, served by current doctrine. The proposal also highlights a better, more flexible conception of "arbitrariness" review. As they discharge this ambiguous task, courts have an ongoing duty to recognize and balance the various competing values served by both rulemaking and its judicial review. Courts should abandon their current rigid orthodoxy and adopt the proposal because, in short, it strikes a better balance among these values.Item Chenery’s Contemporaneous Rationale Principle and Chenery Cheating(Administrative & Regulatory Law News, 2018) Murphy, Richard W.Discusses general practice of how an administrative order may be reversed before and after the SEC v. Chenery case in 1943. Previously, in some contexts, where a court reviews another decisionmaker’s action, the court inquires whether the decisionmaker could have reasonably justified the action. Here, courts do not attempt to examine the actual reasoning processes of the legislators. This changed after the Chenery case. Now where an agency’s action is not compelled by law but instead implicates its judgment and discretion, the validity of that action does not depend on whether the agency could have had a reasonable justification at the time it acted. Rather, the validity of the action depends on whether the agency’s contemporaneous rationale was, in fact, legal and reasonable. Since Chenery, courts look to find ways around this, with or without acknowledging that they are doing so.Item The DIY Unitary Executive(Arizona Law Review, 2021) Murphy, Richard W.Explores a simple argument for preserving a measure of formal agency decisional independence in the event that the Supreme Court, as Seila Law LLC v. Consumer Financial Protection Bureau seems to portend, adopts an unalloyed, strong version of the unitary executive theory. According to strong unitarians, Article I's vesting of the executive power in the President authorizes that official to control discretionary powers that Congress has granted to agencies. The executive power, however, is the power to enforce laws, not to break them. It should follow that the President, to exercise an agency's statutory discretion legally, should have to comply with any procedural constraints that Congress has placed on the exercise of that power. Put another way, the President, to take over an agency's role as the "decider," should have to do the decider's work. Presidents, notwithstanding their authority to delegate, should find that these burdens are often not worth the trouble, preserving space for agency decisional independence even in a unitarian world.Item Due Process and Judicial Review of Government Kill Lists(Loyola Law Review, 2021) Murphy, Richard W.Proposes a procedural experiment that would enable courts to review placements on kill lists while protecting the national security and separation-of-powers concerns that motivate the state-secrets privilege and the political question doctrine. Under this proposal, a court would protect state secrets by denying the plaintiff any access to them, and it would guard against violation of the political question doctrine by limiting its factual review to determination of whether the government has a reasonable basis for its placement decision. This limited form of review would, in the name of protecting national security, severely diminish fundamental due process requirements of notice and an opportunity to be heard. It would also, however, provide a role for a third core element of due process, a neutral decisionmaker.Item UnFoxing Judicial Review of Agency Policy Reversals or "We Were Told to Like the New Policy Better" Is Not a Good Reason to Change(University of Richmond Law Review, 2020) Murphy, Richard W.Looks at agency changes in policy based on presidential influence in light of the Fox case. Part I of this Article provides context for the debate over the Fox power by tracing the evolution of leading efforts over the last century to legitimize agency policymaking and close the "democracy deficit" that it purportedly creates. Part I focuses in particular on the courts' development of arbitrariness review as a means of controlling agency policymaking, and it also pays particular attention to the "presidentialist" model that White House control of agency policymaking democratizes and legitimizes it. Part II takes a close look at the Fox litigation itself. This discussion reveals that Justice Scalia's Fox power, like presidentialism, presupposes that extra-statutory political influences wielded by elected officials and their proxies can legitimize agency policy changes. Part III criticizes this framework for resting on an unrealistic understanding of democratic governance and electoral accountability, and it explains why Justice Breyer was right to insist that agencies should give (expert) answers to his "Why change?" query.