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President Obama’s use of enforcement discretion to achieve important domestic policy initiatives—including in the field of criminal law—has sparked a vigorous debate about where the President’s duty under the Take Care Clause ends and legitimate enforcement discretion begins. But even with broad power to set enforcement charging policies, the President controls only the discretion of his or her agents at the front end to achieve policy goals. What about enforcement decisions already made, either by the President’s own agents or by actors in previous administrations, with which the President disagrees? The Framers anticipated this issue in the context of criminal law and vested the President with broad and explicit back-end control through the constitutional pardon power. This clemency power is a powerful tool for the President to oversee federal criminal administration. But while centralized authority over enforcement discretion at the front end has grown, the clemency power finds itself falling into desuetude.

This Article explores the fall of the clemency power and argues for its resurrection as a critical mechanism for the President to assert control over the executive branch in criminal cases. While clemency has typically been referred to as an exercise of mercy and even analogized to religious forgiveness, it also serves a more structurally important role in the American constitutional order that has been largely overlooked: It is a critical mechanism for the President to control the executive department in criminal matters. Those in favor of strong presidential administration or advocates of a unitary executive theory should encourage a more robust employment of the clemency power. But even critics of strong presidential powers or unitary executive theory in other contexts should embrace clemency as a mechanism of control in the criminal sphere. Whatever the merits of other unitary executive or presidential administration claims involving military power or oversight over administrative agencies, clemency stands on different footing. It is explicitly and unambiguously grounded in the Constitution’s text, and it has an established historical pedigree. It is also a crucial checking mechanism given the landscape of criminal justice today. The current environment of expansive federal criminal laws and aggressive charging by federal prosecutors has produced a criminal justice system of unprecedented size and scope. Federal prisons are overcrowded and expensive, and hundreds of thousands of individuals are hindered from reentering society because of a federal record. Clemency is a key tool for addressing poor enforcement decisions and injustices in this system, as well as checking disparities in how different U.S. Attorneys enforce the law.

In an apparent victory for federalism, the Obama Administration has set out a policy of deference to state marijuana regulations, even when state laws conflict with federal prohibition. Critics of this policy have alleged that the executive is unconstitutionally leaving portions of federal law unenforced, effectively legalizing a drug that is still classified as a Schedule 1 narcotic. But in reality, current executive branch guidelines for the exercise of prosecutorial discretion are limited, vague, and largely unenforceable. Instead, the real risk is not that current federal nonenforcement policy will effectively legalize marijuana, but that the policy will fail to induce the reliance necessary for states to serve as effective laboratories of experimentation. This concern can be addressed, to an extent, by requiring that U.S. Attorneys use their enforcement authority in a more formal, transparent, and reliable fashion. However, constitutional limits on executive power mean that deregulation is likely to remain imperfect until a legislative solution is enacted.

Chevron Deference and Statutory Interpretation in Immigration Detention Cases

This article questions the application of Chevron deference in federal court habeas review of statutory immigration detention challenges. Since the enactment of a mandatory detention statute for immigrants facing deportation, the Board of Immigration Appeals—an administrative body within the U.S. Department of Justice—has played an increasingly important role in interpreting the scope of detention for thousands of immigrants each year. Federal courts have long served as an important check against executive detention through habeas review and have declined to accommodate other deference norms in the immigration detention context. Federal courts have nonetheless applied Chevron to immigration detention cases without questioning whether such deference to the agency is appropriate. This article explains why federal courts should reject the application of Chevron when exercising habeas review of statutory immigration detention challenges. This article further explains that federal courts, whether or not fettered by Chevron, should apply interpretive norms that properly account for the important physical liberty interest at stake.

This Article considers the significance and promise of Congress’s unprecedented codification of the well-known Chevron and Skidmore judicial-deference doctrines (to which I refer collectively as “Chevmore”). Congress did so in the Dodd-Frank Act by instructing courts to apply the Skidmore deference factors when reviewing certain agency-preemption decisions and by referring to Chevron throughout.

This codification is meaningful because it informs the delegation theory that undergirds Chevmore (i.e., that Congress intends to delegate interpretive primacy over statutory interpretation to agencies under Chevron or courts under Skidmore). Scholars and at least three Supreme Court Justices have decried the judicial inquiry into congressional intent as “fictional” or “fraudulent,” arguing that Congress doesn’t think about interpretive primacy, courts don’t really try to divine congressional intent, and courts rely upon overbroad assumptions as to congressional intent.

Dodd-Frank provides the best direct evidence to date as to congressional intent. Dodd-Frank reveals that Congress knows of Chevmore, legislates with it in mind, and acquiesces to its principles. But Dodd-Frank’s preemption provisions—which give an agency rulemaking power subject to Skidmore review—undermine the Supreme Court’s recent suggestion that Congress intends agencies to receive interpretive primacy (via Chevron’s more deferential review) whenever they have rulemaking authority. These insights support earlier precedents that did not treat rulemaking as a talisman. If courts apply these earlier precedents, Chevmore is neither fiction nor fraud.

Dodd-Frank also demonstrates Chevmore codification’s promise for addressing longstanding administrative-law issues. With “Chevron rewards” and “Skidmore penalties,” Congress can—as it did in Dodd-Frank—clarify how agencies must act to obtain Chevron deference, balance “hard look” judicial review with regulatory ossification, and respond to regulatory capture. Chevmore codification can thereby become a key legislative tool for overseeing the administrative state.

In response to widespread concerns about the extent to which “trolls” distort the patent process and other deficiencies in the patent system, Congress created two new administrative trial processes by which a third party may challenge the validity of a patent in a more streamlined and less costly way than through a civil trial. Unfortunately, the very features that made these administrative quasi-judicial proceedings efficient also make them ripe for anticompetitive abuse. This behavior is especially problematic when it comes to bargaining over licenses for patents recognized as a “standard” or deemed to be “essential” to a particular industry. In this context, instituting administrative trials to determine patent validity may actually create an inequality in bargaining strength that allows the potential licensee to extract rents from the patent holder—especially if that licensee possesses market power.

This Note explores the source and nature of these anticompetitive harms and recognizes that, as currently applied by the courts, antitrust law cannot be used to reach these abuses. Noerr-Pennington immunity shields firms from exposure to antitrust liability with respect to most government interactions, with only narrow exceptions for sham petitioning and litigating activity. In the patent context, these exceptions are far too narrow and make antitrust liability functionally unobtainable. In particular, this Note argues that the “sham litigation” exception to Noerr-Pennington should be expanded to encompass a wider range of litigation tactics—including instituting an administrative proceeding—to deter anticompetitive behavior that distorts both bargaining over patent licenses and the market more broadly.

In June 2013, President Obama issued a memorandum directing the Environmental Protection Agency (EPA) to use its authority under Sections 111(b) and 111(d) of the Clean Air Act to address carbon pollution from new and existing power plants. Over two years later, the EPA issued the final rule, known as the Clean Power Plan, and a proposed federal plan that will be implemented in states that do not submit their own plan under the Clean Power Plan. Both the Clean Power Plan and the EPA’s proposed federal plan rely heavily on emissions trading programs to reduce carbon emissions in a cost-effective manner. Emissions trading programs set a cap on the total amount of a pollutant permitted and allow sources to buy and sell allowances based on how much of the pollutant each source is reducing or emitting. Opponents of the Clean Power Plan and its trading provisions are challenging the rule on the grounds that it is beyond the EPA’s authority under the Act.

This Note suggests that these emissions trading provisions are valid for two related reasons: first, the EPA has successfully implemented emissions trading programs under Section 110 of the Act in the past that demonstrate the agency’s longstanding history of using these programs; and second, emissions trading has been upheld by the Supreme Court as permissible under Section 110, and Section 111(d)—under which the Clean Power Plan was promulgated—contains two substantive references to Section 110. Taken together, the EPA’s past use of emissions trading programs and the statutory references in Section 111 suggest that the trading provisions in the Clean Power Plan and the proposed federal plan are a permissible exercise of the EPA’s authority.

With the rise of the internet and computer storage, the loss and theft of individuals’ private information has become commonplace. Data breaches occur with increasing regularity, leading some to question if the current statutory and regulatory schemes properly incentivize the maintenance of adequate security measures amongst federal agencies. This Note argues that inadequate data security practices by government agencies implicate the constitutional right to informational privacy. While the Court has previously upheld intrusive personal information collection programs, the Privacy Act, which plays an essential role in the Court’s decisions, has been weakened significantly by recent interpretation of its damages provision. Given this change in the effectiveness of the statutory protection of private data, lawsuits alleging a violation of the constitutional right to informational privacy might succeed and could help incentivize optimal levels of data security amongst government agencies.

Federal rulemaking has traditionally been understood as a text-bound, technocratic process. However, as this Article is the first to uncover, rulemaking stakeholders—including agencies, the President, and members of the public—are now deploying politically tinged visuals to push their agendas at every stage of high-stakes, often virulently controversial, rulemakings. Rarely do these visual contributions appear in the official rulemaking record, which remains defined by dense text, lengthy cost-benefit analyses, and expert reports. Perhaps as a result, scholars have overlooked the phenomenon we identify here: the emergence of a visual rulemaking universe that is splashing images, GIFs, and videos across social media channels. While this new universe, which we call “visual rulemaking,” might appear to be wholly distinct from the textual rulemaking universe on which administrative law has long focused, the two are not in fact separate. Visual politics are seeping into the technocracy.

This Article argues that visual rulemaking is a good thing. It furthers fundamental regulatory values, including transparency and political accountability. It may also facilitate participation by more diverse stakeholders—not merely regulatory insiders who are well-equipped to navigate dense text. Yet we recognize that visual rulemaking poses risks. Visual appeals may undermine the expert-driven foundation of the regulatory state, and some uses may threaten or outright violate key legal doctrines, including the Administrative Procedure Act and longstanding prohibitions on agency lobbying and propaganda. Nonetheless, we conclude that administrative law theory and doctrine ultimately can and should welcome this robust new visual rulemaking culture.

Nearly half of all employers consider applicants’ credit histories when making some hiring or promotion decisions—and they risk violating Title VII of the Civil Rights Act of 1964 (Title VII) when they do so. Employer credit checks have a potentially disparate impact on minorities and an attenuated relationship to asserted concerns about job performance and employee theft. The case law analyzing disparate impact challenges to credit check policies, meanwhile, is sparse, leaving employers with little direction as they shape their practices. This Note suggests that the Equal Employment Opportunity Commission (EEOC) issue detailed guidance on employers’ use of credit checks and proposes a novel framework drawn from agency guidance on the use of criminal records, which adopts the Eighth Circuit’s Green factors. Specifically, the EEOC ought to recommend that employers take into account the source or type of debt, the time between the “negative behavior” and the employment decision, and the nature of the job; the guidelines should also advocate for individualized assessments. Guidance along these lines would clarify what constitutes lawful credit check usage and benefit the job-seekers that Congress intended to protect with Title VII’s enactment.

The prevailing medical consensus is that drug addiction and alcoholism are disabilities. Before 1996, SSI and SSDI, the nation’s major disability benefits programs, recognized that consensus and provided benefits to people struggling with addiction. Then, the “DAA materiality” provision of Congress’s 1996 welfare reform legislation revoked eligibility not only from people struggling with addiction, but also from people with addiction and another severe disability whose addiction contributes to the severity of the other disability. For this latter group of “dual-diagnosis” claimants, it is often impossible to determine which of a claimant’s impairments would remain absent substance abuse. In such cases, the evidence is in equipoise, and whichever party bears the burden of proof of DAA materiality will lose. Despite its importance to many disability benefits claimants, the issue of who bears the burden of proof remains unresolved, with the Social Security Administration placing the burden on the government and a split among the federal appeals courts that have taken up the issue. This Note argues that the burden of proof of DAA materiality should fall on the government. It shows that the DAA materiality provision creates an exception to the definition of disability in the Social Security Act that functions like an affirmative defense for the government to deny benefits to otherwise eligible claimants. It then contrasts the many obstacles facing dual-diagnosis claimants with the government’s superior resources and expertise to offer proof on the complex DAA materiality issue.