Administrative law

  • April 15, 2015
    Guest Post

    by Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center

    Most would agree that the Toxic Substances Control Act (TSCA) is one of our least effective federal environmental laws.  It is a welcome development, then, that Congress has begun seriously to consider legislation to reform this statute.  However, a prominent TSCA reform bill now circulating in Congress – the Frank R. Lautenberg Chemical Safety for the 21st Century Act, sponsored by Tom Udall and David Vitter – may stymie meaningful federal regulation of chemicals while preempting the state laws that have stepped into the breach opened by the failure of TSCA.  This would leave us even worse off than we are today.

    It is common ground among experts in the law of toxic substances control that a major reason for the failure of TSCA is the paralyzing effect of a 1991 federal court decision – Corrosion Proof Fittings v. EPA – invalidating the Environmental Protection Agency’s ban on asbestos.  There, the court piled on stifling analytical requirements as prerequisites for regulatory action on toxic chemicals and applied strikingly strict scrutiny to EPA's evaluation of the costs and benefits of banning asbestos.  So large does this decision loom in the failed history of TSCA that any law aiming to reform TSCA will almost certainly be viewed with close attention to how the law purports to change the features of TSCA that spelled doom for EPA's ban on asbestos in Corrosion Proof Fittings.

    Here is the rub: In two significant respects, the Udall-Vitter bill does not change the features of TSCA that undid EPA’s asbestos ban.  The bill retains the same overall formulation of the safety standard to be achieved (protection against “unreasonable risks”) and the same standard for judicial review (“substantial evidence”) that together brought down the ban on asbestos.  To retain these features of TSCA even though they proved so damaging in the litigation over asbestos is to signal that the Udall-Vitter formula for TSCA reform is not so reformative after all.

    For the safety standard, the Udall-Vitter bill pairs a standard of "no unreasonable risk of harm to health or the environment" with an instruction to EPA not to consider "cost or other nonrisk factors" in determining whether a risk is “unreasonable.”  For many years, courts have interpreted “unreasonable,” when used in health, safety and environmental statutes, to permit a balancing of costs and benefits.  It is thus confusing to pair the term “unreasonable risk” with an injunction not to consider costs and other factors besides risk.  Yet the Udall-Vitter bill does not provide further clarity; it nowhere defines “unreasonable risk.”

    Legal confusion has consequences.  When a statute is ambiguous, courts will defer to an agency's reasonable interpretation of that statute.  The juxtaposition of language signaling a desire for cost-benefit balancing and language signaling a hostility to such balancing may be unclear enough to allow the EPA ultimately to exercise its discretion to choose which approach – cost-benefit balancing or no cost-benefit balancing – to adopt.  Whatever EPA's present inclinations in this regard might be, there is no guarantee they will remain fixed in future administrations.

  • April 3, 2015
    Guest Post

    by Nicole Huberfeld, H. Wendell Cherry Professor of Law, University of Kentucky

    The Supreme Court recently decided Armstrong v. Exceptional Child Center, a low-profile case that could strike at the heart of the Medicaid program, a federal program that provides funding to states to facilitate mainstream medical care for low-income Americans. The Medicaid Act contains requirements that states must obey to receive federal funding, one of which is called the equal access provision, or "30(A)".  This provision requires states to ensure that “payments . . . are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area.” Historically, Medicaid payment rates are lower than private insurance or Medicare rates, despite the 30(A) requirement for sufficient payment.

    Additionally, the Medicaid Act does not provide explicit remedies for state failures in the program, other than authorizing the Department of Health and Human Services (HHS) to withdraw federal funding.  Thus, over the years, health care providers and patients have brought private enforcement actions under the civil rights statute known as Section 1983 or under the Supremacy Clause of the U.S. Constitution to enforce statutory rights under the Medicaid Act.  Section 1983 actions have been limited by the Supreme Court.  Consequently, health care providers and Medicaid beneficiaries turned to the Supremacy Clause, seeking injunctive relief against states under the theory that states violate federal law when they fail to pay sufficient reimbursement rates to ensure equal access.  Two years ago, the Court nearly eliminated Supremacy Clause actions in Douglas v. Independent Living Center, but deference to agency decision making ultimately stayed the Court’s hand.

    Armstrong has done what the dissent in Douglas would have.  Justice Scalia’s majority opinion pointedly began by noting that states agree to spend federal funds "in accordance with congressionally imposed conditions."  The majority asserted that the Supremacy Clause provides a "rule of construction" but does not "create a cause of action" unless Congress "permits the enforcement of its laws by private actors."  The Court then determined that Congress intentionally excluded private enforcement from the Medicaid Act, and therefore providers cannot seek injunctive relief under the Supremacy Clause.

    This conclusion is incorrect.  Congress did not "foreclose" or "exclude" private enforcement from the Medicaid Act, either in 1965 when Medicaid was enacted, or when 30(A) amended the Act.  In fact, Congress debated preventing providers and beneficiaries from seeking relief in federal court but never added such language to the Medicaid Act.  Nevertheless, the majority concluded that the Secretary of HHS is solely responsible for enforcing 30(A) pursuant to her authority under 42 U.S.C. §1396c to withhold Medicaid funds from non-compliant states.  The Secretary is reluctant to withhold funds because it could harm beneficiaries, but the majority did not engage this quandary.  Instead, the majority called 30(A) judicially unmanageable – even though lower federal courts have guided states under 30(A) for years – and held that HHS must directly engage the states without federal courts’ interference.

    The majority circled back to Medicaid's status as a spending program in Part IV of its opinion, which may resurrect a dormant theory of spending programs as being like contracts and unlike other federal laws.  The Court often analogizes federal conditional spending programs to contracts under the Pennhurst decision, but in some cases (e.g. Barnes v. Gorman), Justices have suggested that the "third party beneficiaries" of federal spending programs have no enforceable rights.  The majority opinion reiterated this view of conditional spending statutes, noting that "contracts between two governments" cannot be enforced by beneficiaries of those contracts.  Not even the historical vision of strict dual sovereignty in federalism would have claimed that the federal government and the states are co-equal sovereigns, yet this dicta seems to embrace a vision of federalism that offers much more power to the states.  The majority opened the courthouse doors to further eroding of conditional spending statutes in the context of the Medicaid Act and perhaps beyond.

  • January 14, 2015
    BookTalk
    Reclaiming Accountability
    Transparency, Executive Power, and the U.S. Constitution
    By: 
    Heidi Kitrosser

    by Heidi Kitrosser, Professor of Law, University of Minnesota Law School

    It is fairly well known by now that the Obama administration has prosecuted more persons for allegedly leaking classified information to journalists than all previous administrations combined.  Yet much less attention has been paid to the legal justifications offered for these prosecutions. 

    Like its predecessors, the Obama administration has consistently maintained in litigation that communications conveying classified information to journalists are “wholly unprotected by the First Amendment.”  This argument, which has been largely successful in the handful of prosecutions to reach courts over the years, rests on the notion that speech about government activities – speech that ordinarily would be deeply protected from content-based prosecution under the First Amendment – loses all protection once marked by the classification stamp.  That stamp is wielded by the millions of persons with some form of classification authority, authority that stems primarily from presidential executive order.

  • January 9, 2015
    Guest Post

    by Sejal Zota, Staff Attorney, National Immigration Project of the National Lawyers Guild

    Moones Mellouli is a native of Tunisia, but a lawful permanent resident of the United States, engaged to marry a U.S. citizen. The federal government is trying to deport Mellouli for his Kansas conviction for possessing a sock – yes a sock! – deemed drug paraphernalia when used to conceal or store drugs. ACS thrives on its law-student participation, so let’s build a hypothetical with socks to illustrate this important Supreme Court argument. When a DOJ attorney steps to the podium at the Court on Jan. 14 to defend this deportation order, imagine for a moment his credibility if he walked up wearing two different colored socks; say a pink argyle and a green striped one.

    But these socks would likely be hidden by the podium -- so imagine, instead, that he walked in on his hands to parade his mismatched stockings before the justices. Far-fetched perhaps, but the eyebrows this would raise should match the justices’ reaction to the government’s mismatched administrative interpretations of the single statute at issue here, Section 1227(a)(2)(B)(i) of the Immigration and Nationality Act.   

    First things first, this statute itself in no way calls for Mellouli’s deportation. It specifically calls for the removal of “any alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance (as defined in section 802 of Title 21).” But the record of Mellouli’s conviction does not disclose anything about the drug he had socked away.  Kansas law bans plenty of substances -- a list far broader than those defined in section 802 of title 21. For example, salvia is on the Kansas list, a type of mint plant, which Miley Cyrus (another adventurous dresser) recently made news smoking.

    The Board of Immigration Appeals (BIA) is the administrative agency responsible for interpretation of this and other immigration statutes. Courts typically give administrative agencies a fair amount of leeway to interpret statutes. This principle is known as Chevron deference.  But this deference is not free for the taking. Federal courts don’t give it when the agency interpretation bears little relation to the statute, and they throw deference completely to the side when the agency starts offering inconsistent interpretations of a single statute. The government is asking for Chevron deference in this case, but suffers from both of these problems.

    The plain language of the federal statute requires the state paraphernalia conviction be directly and necessarily tied to a controlled substance under federal law. Keeping paraphernalia used with salvia and other Kansas-forbidden drugs may be criminal in Kansas, but these drugs are not on the federal list of controlled substances. There is no necessary federal tie Mellouli’s Kansas crime, and no basis for interpreting the statute otherwise. 

  • August 1, 2014
    Guest Post

    by Lisa Heinzerling, the Justice William J. Brennan, Jr., Professor of Law, Georgetown Law; Co-Faculty Advisor, Georgetown University Law Center ACS Student Chapter

    Imagine a government warning on tobacco products that gave nearly equal prominence to both the pleasures and pains of using tobacco products. The "warning" would tell citizens that whether they should use tobacco products or not was – despite the government's long practice of recommending against such use – actually a pretty close case. Tobacco use is just so pleasurable, it turns out, that its risks – of bad health, of early death – might be worth it.

    Or imagine a parent saying the same thing to her child: here are the risks of using tobacco products, she'd say, but here on the other side are the wonderful pleasures. You make the call; it's too close for me to judge.

    Despite its strangeness, this is exactly the kind of statement the White House and the Food and Drug Administration have collaborated in propounding in the context of a proposed rule deeming certain tobacco products subject to FDA regulation under the Family Smoking Prevention and Tobacco Control Act. Economists from the FDA and the White House's Office of Management and Budget published a study purporting to estimate the amount by which the health benefits of tobacco use reduction are offset by a loss of the pleasure of using such products. When the FDA's proposed rule on tobacco products went to the White House for review, White House economists, rather than placing this study in the dustbin where it belonged, doubled down on its strange analysis. Indeed, they ended up increasing the FDA's estimate of the extent to which the "lost pleasure" associated with reducing tobacco use offsets the health benefits to be gained.