Administrative law

  • 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.

  • July 8, 2013

    by Jeremy Leaming

    Republican senators bent on shuttering or at least greatly hindering the National Labor Relations Board (NLRB), which is charged with protecting the right of workers to organize, continued their efforts of obstruction by holding up nominees to the five-member board. The Senate minority also sought to delay or scuttle the president’s nominations to the Environmental Protection Agency, Department of Labor and Consumer Financial Protection Bureau.

    Senate Democrats are discussing how best to reform chamber processes to facilitate more progress and action on various nominations. We may learn more following Tuesday’s Senate Democratic Caucus lunch meeting if Majority Leader Harry Reid (D-Nev.) raises the issue there with his colleagues.

    Regarding the NLRB, which Republicans have long maintained is an entity harmful to business interests, Senate Republicans blocked attempts to hold up-or-down votes on the nominations of Mark Gaston Pearce, Richard F. Griffin, Jr., Sharon Block, Harry I. Johnson III and Philip A. Miscimarra. Republicans have pointed to an opinion issued earlier this year by the U.S. Court of Appeals for the District of Columbia Circuit that President Obama’s now-expired recess appoints of some nominees were unconstitutional.

    The Republicans argue that until the litigation in the case, NLRB v. Noel Canning, is resolved the labor board should not be permitted to function. The Supreme Court announced in June it would consider the case during its next term. Business lobbyists and their allies in the Senate have looked for all kinds of ways to paralyze or greatly hobble the NLRB, such as refusing to consider to the president’s nominations, which led to the recess appointments.

    After the president sent his package of nominees to the NLRB this spring, ACSblog featured guest blog posts on the struggle over the labor board. They include compelling stories about the work of the NLRB and provide detailed context of the ongoing controversy:

  • June 21, 2012
    Guest Post

    By Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service, George Washington University Law School. The writer did an unpaid moot court for plaintiffs’ counsel in the case discussed in this essay.


    In Christopher v. SmithKline Beecham (No. 11-204, decided June 18, 2012), the Supreme Court had to decide whether individual plaintiffs who were detailers for drug companies were exempt from the overtime provisions of the Fair Labor Standards Act (FLSA), which do not apply to workers employed “in the capacity of outside salesmen.” The relevant facts were undisputed and also appear to be unique to this industry. There is an interesting administrative law issue relating to whether the interpretation of the Department of Labor, which enforces the FLSA, should be given deference, but what caught my eye was the battle between the literalists and the pragmatists and how it came out in this case.

    The job of a drug detailer is to persuade doctors to prescribe the prescription drugs sold by their company to their patients in appropriate situations. By law, those drugs can only be purchased from a licensed pharmacy, with a doctor’s prescription, and the actual sales of the drugs are made by the manufacturer (the employer of the detailer) to the pharmacy, but never to a doctor or a patient directly. Detailers are paid good salaries, plus a modest bonus that is loosely determined by the sales of the drugs in their territory. The individual plaintiffs earned in excess of $70,000 per year and the industry average is above $90,000.  They regularly work between 10-20 hours a week above the 40 hours, after which they would be entitled to overtime. Their work is almost always out of the office, and no one supervises them on a daily basis.

    The issue the Court had to decide was whether these plaintiffs (and nearly 90,000 others in the industry who work in virtually identical arrangements) are exempt from the overtime law because they are outside salesmen. At stake was potentially millions of dollars in unpaid overtime for whatever period was not barred by the statute of limitations. The companies could probably restructure their pay systems in the future to minimize the impact, by reducing salaries or bonuses to offset any anticipated overtime, but they would prefer not to have to do that.