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Dear Friends,

Happy Thanksgiving! Even in such a trying year, here at the Gray Center, we're finding much to be grateful for. President Washington’s original Thanksgiving proclamation is always worth re-reading, but I’d also encourage you to take a look at the brief September 1789 congressional debate that preceded it. The more things change, the more things stay the same.

In the aftermath of the presidential election, there will be much discussion of what a Biden Administration might do in its regulatory policies, and in its approach to White House oversight of the agencies. Please keep an eye on your email inboxes in the weeks to come, as we’ll be hosting a few webinars in January and beyond, to look at those issues and more (sign up here if you don't already get our event invitations). In the meantime, I got the ball rolling in a podcast with Professors Michael Livermore and Richard Revesz. The discussion centered around their new book, Reviving Rationality, a sequel to 2008’s Retaking Rationality. Their new book considers developments in the Obama and Trump Administrations, and naturally we looked forward a bit to what could happen in a Biden Administration. 

I’ll include links to some other interesting previews, in the “Notice and Comment” section at the end of this email. (And a Thanksgiving-related item, too.) But let’s close on a slightly different note:

In late October, President Trump signed Executive Order 13957. It established a new “Schedule F” for federal employment, asserting more presidential oversight over civil servants who exercise significant policymaking discretion. The order spurred significant criticism from the American Federation of Government Employees and others, and surely President-elect Biden will repeal it promptly upon taking office. But as Philip Howard observed in a recent interview, this executive order is yet the latest opportunity to pause and think seriously about both the importance of maintaining a high-quality federal civil service and the importance of ensuring that policy decisions are ultimately made by presidents and their agency heads, in faithful execution of Congress’s laws and the Constitution.

The importance of these issues cannot be exaggerated. The Gray Center already has worked to foster debate and research on these subjects, and it will continue to do so in the year ahead.

All the best,

Adam White
Executive Director
The C. Boyden Gray Center for the Study of the Administrative State
Center of Activity: Upcoming Events

Save the Date for our Pre-Inauguration Webinars!

In mid-January, the Gray Center will begin hosting a series of Zoom webinar discussions about the future of regulatory reform in the Biden Administration. Full details, including speakers, will soon be announced. But in the meantime, please hold these dates:

  • Jan. 12: “OIRA and White House Regulatory Oversight” (tentatively scheduled for 1:00–2:30 p.m. ET)

  • Jan. 14: “Energy and Environmental Regulation” (tentatively scheduled for 1:00–2:30 p.m. ET)
Working Papers: Read the Latest

The following papers were workshopped at a Gray Center roundtable titled, “The Federal Reserve, Financial Regulation and the Administrative State”

This article proposes cultural, regulatory and legislative reforms of the Fed. These proposed reforms seek to reverse the Board of Governors' decline in authority and status, so that the Board can once again be an effective manager, supervisor, and source of accountability within the agency.

By analyzing data from the change in stock prices around the announcement of agency rulemaking, Brian Libgober finds that both ex parte meetings with regulators and public comments tend to result in higher returns – and that ex parte meetings are typically more valuable to firms than public comments.
The following papers were workshopped at a Gray Center roundtable titled, “Delegations and Nondelegation after Gundy
The Minor Questions Doctrine by Aaron L. Nielson
As opposed to major questions, “minor questions” are here defined as policy decisions that are not salient but still important to the public good. This paper argues that these minor questions, which can often be addressed by more than one branch of government, often go unaddressed due to collective-action dynamics. Aaron L. Nielson proposes eliminating the inter-branch overlap for these minor questions, so that deference does not get in the way of less salient and less controversial policies.
In this article, Ilan Wurman draws on evidence from the early years of the Republic to establish that the nondelegation doctrine did exist at the time of America’s founding. The article goes through the proposed nondelegation amendment, the post roads debate, the Alien Friends Act and more to show that the founding generation agreed upon the principle that Congress could not delegate its legislative power.
John Yoo considers the question of nondelegation from the perspective of Congress, and whether the cooperative dynamics between the three branches of government should cause Congress to be more in favor, or more opposed to the doctrine. Concluding that Congress should in fact favor a robust nondelegation doctrine, as it limits the risk of variability in agency decisions over time, Yoo finds that the doctrine could increase inter-branch cooperation, since it gives Congress the confidence that its delegation of power will be respected and enforced.
"Arbitrary and Capricious": Listen to our Most Recent Podcast Episodes

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. In this episode of the podcast, Prof. Robert Post of Yale Law joins Adam to discuss Chief Justice William Howard Taft's tenure on the Supreme Court and his opinion in the Myers v. United States case. 

Governments make rules. But governments often grant exemptions from those rules, either when the rules are written or in the ways they are enforced. To consider the two main categories of unrules ("dispensations" and "carve-outs") and expand upon their article on the topic, Prof. Cary Coglianese and Prof. Daniel Walters join the podcast. Listen here.

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 going forward. Take a listen to their conversation with Adam White here

We've also published all of our recent conference panel discussions as podcast episodes so you can easily catch up on our latest events. Listen to the Gray Center's entire audio catalog here, as well as on iTunesSpotifyStitcher, and wherever else you listen to podcasts.
Staff Highlights

Get to know Molly Doyle! - Molly is the Associate Director for Communications at the C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School. She previously worked in marketing communications roles in sectors such as health care and high-tech in both nonprofit and consultancy settings. She is a graduate of American University in Washington, D.C., where she studied Communications and Marketing. In her free time, she enjoys art and volunteering in animal rescue.
Now Published: See Where the Latest Gray Center Scholarship Has Appeared

Regulation as Partnership by Justin (Gus) Hurwitz, 3 J.L. & Innovation 117 (2020)

Meetings, Comments, and the Distributive Politics of Rulemaking by Brian Libgober, 15 Q.J. Pol. Sci. 449 (2020)
Distinguished Work: Updates on our Advisory Council, Affiliated Faculty, and Distinguished Senior Fellows

  • Dayna Bowen Matthew, the new Dean of George Washington University's Law School, recently launched a podcast to discuss the social issues surrounding the 2020 election. One of her first guests was GW Law Professor and Gray Center Advisory Board Member, Richard J. Pierce, Jr. (right), who joined the podcast to discuss, among other things, his changing views on Chevron deference.

  • Professor Pierce also recently wrote in The Regulatory Review about the antitrust case against Google brought by Trump’s Justice Department and why the incoming Biden administration should dismiss the case and refrain from bringing similar cases in the years to come. Read more here.

  • In Law & Liberty, Professor Michael Greve of Scalia Law, a Gray Center Affiliated Faculty Member, reviews Yale Law Prof. Jack Balkin's new book, The Cycles of Constitutional Time. Find it here.

  • One of the panels at the Federalist Society's 2020 National Lawyers Convention was centered on regulatory practice and oversight in 2021 and beyond. The panel was moderated by Ninth Circuit Judge Ryan D. Nelson and the guests were Gray Center Director Adam White, NYU Law Professor Sally Katzen, and Dean Emeritus of Boston University Law, Ronald A. Cass. Katzen and Cass are both Distinguished Senior Fellows and Advisory Board Members at the Gray Center. Find the full video here.

  • In The Volokh Conspiracy, Gray Center Advisory Board Member, Professor Jonathan Adler of Case Western Reserve, has a series of blog posts on Texas v. California, the latest challenge to the Affordable Care Act. Read his thoughts on standing in this case as well as what he made of the oral arguments.

  • Gray Center Advisory Council Member Christopher J. Walker, along with his co-author Matt Weiner, published an initial draft of their report on agency appellate systems for the Administrative Conference of the United States. The report focuses on a host of important questions that relate to agency appellate review. Read Walker’s introduction here and the full draft here.

  • Dean Mark Rozell of GMU's Schar School of Public Policy, a Gray Center Affiliated Faculty Member, co-authored an op-ed in The Washington Post that analyzes what this year's election results mean for Virginia, Maryland, and D.C. Read it here.
"Summary Judgment"
Past Gray Center Scholarship & Today's News

On October 21, 2020, President Donald Trump issued Executive Order 13957, “Creating Schedule F in the Excepted Service,” which aims to reclassify a portion of federal competitive service employees who serve in policy-oriented roles as members of the excepted service. According to a White House press release, the order is meant to increase accountability for such employees and allow agencies greater flexibility to address poor performance (read Federal News Network’s in-depth coverage here and the full text of the EO in the Federal Register here). 
The order builds upon 2018 reforms to the civil service that were issued by President Trump, including Executive Order 13839, which streamlined removal procedures for poor-performing federal employees, and Executive Order 13843, which, in light of the Supreme Court’s decision in Lucia v. SEC, changed the hiring and appointment process for administrative law judges, reclassifying them as members of the then-new Schedule E of the excepted service. 
Critics of the new EO have expressed their concern that the positions in question are being politicized by the Trump administration. Dr. Ronald Sanders, chair of the Federal Salary Council, resigned from his position on account of the EO (read his resignation letter in the Yale Journal on Regulation), and according to The Hill, the National Treasury Employees Union has filed suit challenging the EO in the U.S. District Court for the District of Columbia. Additionally, Federal News Network has reported on congressional attempts to block the EO.
For more reading on the topic of the civil service, take a look at some past scholarship the Gray Center has published: 

  • In one paper, Prof. Jennifer Nou considered the implications of civil servant disobedience. Read it here
  • In another, Prof. Joseph Postell traced “the evolution of the U.S. Civil Service system from a focus on merit to an emphasis on expertise – and back again to merit.” Take a look here
  • In a third, Philip Howard explains that accountability is the lynchpin to overall reform of the civil service system. Find it here.
  • Finally, former U.S. Ambassador to the European Union Stuart Eizenstat reflected on the Carter administration’s efforts to reform the civil service in the aftermath of the Watergate scandal. Eizenstat was a policy advisor to President Carter during his presidential campaign and subsequent administration. Read it here
"Notice and Comment"
Things Worth Reading

  • “What Will Regulatory Policy Look Like Under President Biden?” In Government Executive, here are thoughtful insights from Susan Dudley and Stuart Shapiro.

  • “Of Policies and Pandemics.” In the Wall Street Journal, the Center’s Director Adam White reviewed American Contagions, by John Fabian Witt.

  • “The Desolate Wilderness” … “And the Fair Land.” Every year, on the day before Thanksgiving, the Wall Street Journal republishes a pair of editorials: one an account from William Bradford of the Plymouth Colony in 1620, and the other by the Journal’s Vermont Royster in 1961. They’re printed individually here and here, and they’re reprinted together here.
This newsletter is edited by Molly Doyle,
Associate Director for Communications for the C. Boyden Gray Center for the Study of the Administrative State