Volume 78, Number 2

Today in the United States, millions of undocumented persons are working long hours for illegally low pay, in workplaces that violate health and safety codes, for employers who defy labor and antidiscrimination laws. Many more fall victim to criminal activity, forced into involuntary servitude and subjected to physical abuse. Yet these immigrants often do not report their harsh conditions and cruel treatment for fear that they will attract the attention of immigration officials and be deported. Law enforcement policies that deter noncitizens from reporting crimes are surely unwise, undermining public safety and health and entrenching undocumented immigrants in a caste hierarchy. In this Article, Professor Michael Wishnie argues that those policies may be unconstitutional as well— violating noncitizens’ First Amendment right to “petition the Government for a redress of grievances.” The Article begins with the Supreme Court’s 1990 suggestion that noncitizens are not among “the people” whose rights the Framers intended to safeguard in the First and Fourth Amendments. To confront the Court’s reasoning on its own historical terms, Professor Wishnie examines the rich history of petitioning by noncitizens from early English tradition through the early nineteenth century, illustrating that the Founders did not intend to exclude noncitizens from “the people” whose rights would be established. Professor Wishnie then develops a theory of “extraordinary speech” to protect noncitizen petitioning and demonstrates how such a theory coheres with related doctrines of court access, unconstitutional conditions,and equal protection. Applying the theory, he concludes that some policies discouraging immigrant communications to law enforcement officials are so burdensome as to violate the First Amendment.

This Article examines executive branch agency actions concluded just before a new President takes office, such as “midnight” rulemaking and late-term hiring and promotion, which Professor Mendelson collectively refers to as “agency burrowing.” Congress, the media, and some commentators have portrayed such activities as unsavory power grabs that undermine the President-elect’s ability to direct the functions of administrative agencies. Rather than dismissing agency burrowing out of hand, however, Professor Mendelson argues for a more nuanced approach. In some cases, burrowing can make positive contributions to the democratic responsiveness of agencies, agency accountability, and the “rule of law.” A fuller analysis of burrowing also suggests the need for a more nuanced approach to President-centered theories of the administrative state. Maximum presidential oversight may be insufficient to ensure agency accountability and democratic responsiveness. Instead of focusing centrally on a formal President-agency relationship, we may wish to give greater attention to more functional means of ensuring agency legitimacy such as monitoring, focused public dialogue on issues before agencies, and agency development of self-limiting rules.

This Article argues that efforts to square the administrative state with the constitutional structure have become too fixated on the concern for political accountability. As a result, those efforts have overlooked an important obstacle to agency legitimacy: the concern for administrative arbitrariness. Such thinking is evident in the prevailing model of the administrative state, which seeks to legitimate agencies by placing their policy decisions firmly under the control of the one elected official responsive to the entire nation—the President. This Article contends that the “presidential control” model cannot legitimate agencies because the model rests on a mistaken assumption about the sufficiency of political accountability for that purpose. The assumption resonates with the premise, familiar in constitutional theory, that majoritarianism is the hallmark of legitimate government. This premise, brought to the fore by Alexander Bickel, now is questioned among constitutional theorists. Moreover, majoritarianism is not enough to legitimate administrative decisionmaking under our constitutional structure for the reason that it does not reliably address the concern for arbitrariness. This Article argues for a more direct focus on the concern for arbitrariness—an approach that has at its core a concern for good government, not simply “accountable” government in the post-Bickel, majoritarian sense of that word. The Article demonstrates how a more direct approach suggests new possibilities for resolving the time-honored problem of agency legitimacy and new ways of understanding the perennial puzzles of administrative law.

My canvas is dauntingly broad, and I must perforce paint with broad strokes. I will focus on administrative law in relation to government regulation, broadly understood. I will first briefly summarize the central elements of administrative law in the United States over the past century and show how they carry forward, reconfigured, into our current era. I will then assess the emerging new methods for achieving regulatory goals in the face of growing administrative fatigue and the implications of those new methods for administrative law. I will conclude with a précis of the emerging international aspects of administrative law.

Since 1997, several states have enacted legislation to increase patients’ ability to sue their Managed Care Organizations (MCOs) for negligent acts. These statutes address the obstacle imposed by the Employee Retirement Income Security Act (ERISA) preemption clause, which severely limits the exposure of MCOs to tort liability. In this Note, Wendy Silver acknowledges the usefulness of these statutes, but posits that they inadequately address the ERISA preemption problem. Under these statutes, patients may bring suit only if their MCOs negligently denied, delayed, or modified their physicians’ recommended course of treatment. Patients whose MCOs unduly and negligently influenced their physicians’ recommendations, however, cannot seek recourse against their MCOs. Silver argues that this loophole permits MCOs to skirt the liability these statutes provide by altering the way in which MCOs influence doctors. Silver concludes by proposing a statutory scheme that would increase MCOs’ exposure to liability, providing MCOs with sufficient financial incentives to maintain the proper quality of patient care.

In this Note, Robert Alexander Schwartz assesses the state of the debate in the latest chapter of the ever-unfolding law of arbitration. What works for high-value agreements between sophisticated parties in arms-length negotiation may not work for contracts of adhesion between businesses and consumers. Focusing on disputes arising under the Truth in Lending Act (TILA), Schwartz analyzes recent case law upholding arbitration agreements contained in consumer-lending contracts of adhesion, as well as recent scholarship criticizing the courts’ actions. He concludes that both the courts and the scholars have it wrong: Neither arbitration as presently constituted nor class action lawsuits can provide individual justice to TILA plaintiffs. Schwartz suggests an alternative legal framework for attacking unfair arbitration clauses while offering a set of modernizing improvements that might make arbitration a viable tool for the resolution of TILA claims and other consumer agreement disputes.

On three occasions, administrative agencies complied with orders of new Presidents to delay the effective dates of “midnight regulations” promulgated in the final days of the outgoing administration. Although rulemaking pursuant to presidential directives is increasingly common, the agencies’ exclusive reliance on presidential authority in these instances is unusual; the delays thus presented a rare opportunity for judicial review of presidential rulemaking. In this Note, B.J. Sanford argues that the delays were illegal. First, they cannot withstand the traditional “hard look” review of administrative action because they do not contain adequate justifications grounded in the authorizing statute. More importantly, by relying on presidential decree rather than statutory authority, the agencies crossed the thin formal line be- tween legally bounded administrative rulemaking and straightforward legislation, producing a constitutionally unacceptable concentration of arbitrary power. Although the immediate impact of this violation may be small, the consequences of repeated acquiescence to it may be much greater, as even small formal deviations, if not consistently challenged, can threaten the system of dispersed power contemplated by the Constitution.

In response to September 11, 2001, Congress established a victim compensation fund, charging the Department of Justice with the responsibility for creating and administering the fund regulations. Several months after the Department of Justice announced its final rules, Cantor Fitzgerald publicly alleged that a number of the regulations were contrary to the congressional act governing the fund. Jonathan Melber examines Cantor Fitzgerald’s arguments and shows that they do not hold up under current principles of administrative law because the challenged regulations fall within the range of discretion Congress delegated to the Department of Justice.