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The 13th edition of this comprehensive casebook draws from its history and current debates to create a lively and rich set of materials appropriate for introductory as well as advanced courses. It contains a substantial chapter on legislative process and statutory interpretation so that the casebook can be used for an introductory legislation and regulation course as well as for administrative law classes. With one new editor (Eloise Pasachoff, Georgetown University), this latest edition makes a number of changes: Pares down existing material from the current edition and supplement, with shorter excerpts and consolidated notes throughout. Includes the latest administrative law decisions from the Supreme Court, often as lead cases, such as West Virginia v. EPA, United States v. Arthrex, Seila Law v. CFPB, FCC v. Prometheus Radio, Wooden v. United States, Concepcion v. United States, Carr v. Saul, TransUnion v. Ramirez, and more. Includes relevant new cases from the courts of appeals and district courts, addressing topics such as the constitutionality of SEC ALJ adjudications, decisionmaker bias, length of comment periods, application of Kisor v. Wilkie, Chevron waiver, and more. Replaces some teaching cases with material that is more accessible to students, including a new case for “logical outgrowth” and new materials on exceptions to notice-and-comment rulemaking. Updates transparency materials to cover the latest Supreme Court decisions on FOIA exemptions, address current events and disputes (including over the Presidential Records Act and various privileges), and show how the mandates from the 2016 FOIA Amendments have been litigated. Discusses the end of the Trump Administration and first 20 months of the Biden Administration, including firings or forced resignations of agency leaders, reversals in presidential directives and agency policies, rulemaking trends, the COVID-19 pandemic, and more. Adds new material on public administration and budgeting. Updates factual, legal, and policy materials throughout the book, with a focus on current issues and examples that appeal to students. The casebook continues to incorporate primary materials outside of judicial decisions (including statutes, administrative materials, IG and GAO reports, and proposed legislation). It also uses a wide range of secondary materials, from law review articles (classic and recent) to social science studies to think tank reports. And it considers strategic choices by agencies and challengers to agency action, not only in the courts but also in the White House and Congress. The new edition retains many of the casebook's classic cases and commentary as well as its modular approach, allowing instructors to choose the order of topics. Although there is considerable new material, the casebook's arrangement remains stable, facilitating continued use by those who have adopted the 12th edition. Adopters have access to slides, writing assignments, examination questions, and more. As occurred with the prior edition, the casebook will be updated annually through a free online supplement for students.
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Congressional delegation of broad lawmaking power to administrative agencies has defined the modern regulatory state. But a new form of this foundational practice is being implemented with increasing frequency: the delegation to agencies of the power to waive requirements that Congress itself has passed. It appears, among other places, as a central feature of two signature statutes of the last decade, the No Child Left Behind Act and the Patient Protection and Affordable Care Act. We call this delegation of the power to unmake major statutory provisions “big waiver.” This Article examines the basic structure and theory of big waiver, its operation in various regulatory contexts, and its constitutional and policy implications. While delegation by Congress of the power to unmake the law it makes raises concerns, we conclude the emergence of big waiver represents a salutary development. By allowing Congress to take ownership of a detailed statutory regime—even one it knows may be waived—big waiver allows Congress to codify policy preferences it might otherwise be unwilling to enact. Furthermore, by enabling Congress to stipulate a baseline against which agencies’ subsequent actions are measured, big waiver offers a sorely needed means by which Congress and the executive branch may overcome gridlock. And finally, in a world laden with federal statutes, big waiver provides Congress a valuable tool for freeing the exercise of new delegations of authority from prior constraints and updating legislative frameworks that have grown stale. We welcome this new phase of the administrative process.