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William Yeatman

Articles by William Yeatman

Another President, Another Unfortunate Innovation in Executive Power

15 days ago

A couple weeks ago, I blogged about “an unfortunate innovation in executive power” during the Obama administration, which I called “leverage policymaking.” In a nutshell, “leverage policymaking” entails regulatory agencies using individual transactions with large corporations—such as enforcement or licensing actions—to achieve broad policy results.
Last week, Cato published a Legal Policy Bulletin about another unfortunate innovation in executive power, but this one was pioneered by the Trump administration. I call it the “ad hoc administrative state”; below, I’ve excerpted the short paper’s executive summary:
A hallmark of the Trump administration has been its creation of significant administrative programs on the fly, based on ambiguous or implied textual authorities, and without any

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It’s the Knick of Time for States to Revisit Overbearing Land Use Regulations

January 13, 2020

It’s January, so most state legislatures are kicking off their sessions. Across state capitols, one issue to monitor is the fallout from the Supreme Court’s 2019 landmark decision in Knick v. Township of Scott, a holding which may compel many local governments to rethink how they regulate private property.
Professor Ilya Somin coauthored an amicus brief to the Knick Court on behalf of the Cato Institute and other organizations, and he summarized the controversy as follows:
The main point at issue in Knick is whether the Court should overrule or limit Williamson County Regional Planning Commission v. Hamilton Bank, a 1985 decision that makes it virtually impossible to bring many types of takings cases in federal court. Under Williamson County, a property owner who contends that the

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How to Make Congress Great Again

January 9, 2020

As I’ve argued repeatedly, Congress is a shell of its former self.
In last Sunday’s Washington Post, Paul Kane made the same point specifically with respect to Congress’s upper chamber. He wrote:
The Senate tasked with holding President Trump’s impeachment trial would be unrecognizable to most of its predecessors . . . By almost every measure, today’s Senate is the least deliberative in the modern era of a chamber that bills itself as the world’s greatest deliberative body.

Congress’s weakness threatens liberty because it reflects a breakdown of the Constitution’s structural check on overbearing government. In modern America, policy flows from regulatory agencies known in the aggregate as the “administrative state.” From 1995 to 2017, the executive branch issued over 92,000 rules,

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Wall Street Journal Editorial Board Misses the Mark on Congressional Staffing

January 2, 2020

Most days, the Wall Street Journal OpEd page runs multiple unsigned editorials next to the letters and across from the opinion columns. Last Friday, however, the Editorial Board gave its entire platform to a single composition, titled “Elizabeth Warren Has a Plan, Oh My.”
The editorial’s thesis is to “show where the American left wants to go” by presenting Senator Elizabeth Warren’s (D-Mass.) campaign platform for president, which “exceeds what the socialist dreamers of a century ago imagined.”
The guts of the editorial are 26 bullet points each describing Warren’s policy initiatives, including “Wealth tax,” “Medicare for all,” and “Free college.” After listing Sen. Warren’s various “plans for that,” the WSJ Board concludes:
All this adds up to such an expansion of government that the

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The Autobahn to Car Consumer Hell Is Paved with the Best Intentions

December 21, 2019

After bailing out two of the “Big 3” Detroit automakers, President Obama called in his markers during the summer of 2011. That’s when his administration announced an agreement with major car manufacturers to increase federal fuel economy standards to 54.5 miles per gallon (MPG) by 2025.
At the time, fleet averages (including cars and light-duty trucks) were about 27 MPG; doubling that figure in 14 years was a tall order requiring technological breakthroughs that might or might not happen.
Accordingly, the 2011 agreement included an escape hatch. The plan stipulated for a “mid-term review” process, by which regulatory agencies could revisit their fuel efficiency targets and change course if necessary.
Under the agreement’s terms, the mid-term review was due by April of 2018. All the parties

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Vox Misses Mark on Institutional Primacy in Contemporary Federal Policymaking

December 10, 2019

Yesterday, Vox’s Ian Millhiser posted an interesting article on how President Trump’s judicial nominees are changing the federal courts.
I’ve no argument with Millhiser’s underlying thesis: A lot of (great) judges have been appointed during Trump’s administration.
The causes for this are obvious. There’s a Republican in the White House, and Republicans control the Senate, so the appointment process is well-oiled. In addition, past Senates (under both parties) changed the body’s rules so as to ease the confirmation of a president’s nominees.
Where I take issue with Millhiser is with his understanding of the judicial power. He writes:
In an age of legislative dysfunction, whoever controls the courts controls the country . . . [Judges] have become the most consequential policymakers in the

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Baldwin v. United States Reflects Worst Practices on Judicial Deference

October 29, 2019

On Friday, the Cato Institute and NFIB filed an amicus brief on behalf of petitioners seeking Supreme Court review of the Ninth Circuit’s April order in Baldwin v. United States. Of course, the odds of the Court exercising its appellate jurisdiction are low for any given controversy; nevertheless, Baldwin reflects a rare combination of worst-practices that might catch the eye of any Justice intent on revisiting “reflexive” Chevron deference and its corollary doctrines.
The Baldwins are a married couple from California who believe they overpaid $167,000 in taxes and sought a refund from the IRS. They claim that they sent their amended return months in advance of the statutory deadline. To prove timely mailing, the Baldwins have offered circumstantial evidence—in the form of multiple

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Cato Piques U.S. Steel in Tariffs Case

September 26, 2019

In a recent post, I reported on the government’s response brief in American Institute for International Steel v. United States before the U.S. Court of Appeals for the Federal Circuit. At issue are President Trump’s steel tariffs. In August, the Cato Institute filed a brief in support of the appellants, who are businesses that rely on imported steel and have been harmed by the tariffs. In response to Cato’s arguments, the government’s brief took a Janus-faced approach. On the one hand, the Justice Department claimed that the Federal Circuit shouldn’t pay attention to our brief; on the other, the government addressed our arguments. As I noted in the blog post, “It doesn’t make much sense for the government to say that we should be ignored, but then to respond to us. As always, actions speak

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Justice Department Responds in Steel Tariffs Case

September 19, 2019

The Justice Department today filed its brief in American Institute for International Steel v. United States before the U.S. Court of Appeals for the Federal Circuit. At issue are President Trump’s steel tariffs. Last month, the Cato Institute filed a brief in support of the appellants, who are businesses that rely on imported steel and have been harmed by the tariffs. 
The government’s response brief, alas, is excellent.
Faced with arguments that the president is unbound, the government points to putative procedural rigor behind the tariffs. In response to arguments that the Constitution empowers Congress—not the president—to regulate foreign commerce, the government stresses the president’s executive authority over foreign affairs. Quite obviously, the Justice Department’s brief reflects

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The Auer Doctrine Suffers Pyrrhic Victory in Kisor v. Wilkie

June 27, 2019

Sometimes it’s possible to lose in name only. Consider, for example, Cato’s position in Kisor v. Wilkie, which the Supreme Court yesterday decided.
By a 5 – 4 vote, the Court upheld the Auer doctrine, or binding judicial deference to an agency’s interpretation of its own regulation. Only four Justices actually validated the Auer doctrine; Chief Justice Roberts provided the fifth vote solely out of respect for precedent. In a brief supporting the petitioner, Cato had argued that the Court should overturn Auer, so technically our position lost.
Nevertheless, the opinion of the Court “reinforced” and “expanded on” the doctrine’s limits. In Part II.B, Justice Kagan set forth several “markers” to guide lower courts regarding the boundaries of Auer deference. In practice, these limits gut

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Article III Court Should Hear Challenge to SEC’s Unconstitutional Enforcement Proceedings

June 18, 2019

How many constitutional infractions must one endure at the hands of the government before getting the chance to be heard in an Article III court? According to the Securities and Exchange Commission, the answer is at least two.
In April 2016, the SEC commenced an enforcement proceeding against Michelle Cochran for alleged violations of federal accounting regulations. The proceeding took place before an administrative law judge who was reported at the time to have said to defendants that “they should be aware he had never ruled against the agency’s enforcement division.” True to his word, the SEC judge issued an initial decision ruling in the SEC’s favor. Ms. Cochran was fined $22,500 and banned from practicing as an accountant for at least five years.
But before the SEC could finalize

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EPA Co-benefits Are Fine, But the Agency Must Tell the Whole Story

June 10, 2019

Should you be worried about mercury emitted from power plants?
Sure, but only if you are a pregnant woman, who during gestation consumes about 220 pounds of fish caught from exclusively the top ten percent most polluted fresh waters of the United States, despite all the signs along these rivers and lakes warning “DO NOT EAT THE FISH!”
Don’t take my word for it. I’m simply relaying EPA science. And not the ‘bad” kind produced by the Trump administration; rather, I’m talking about virtuous EPA science as practiced by the Obama administration.
A little background: mercury emissions aren’t a direct threat to humans, but instead settle onto water bodies, and then make their way up the aquatic food chain. Because mercury is a neurotoxin, the fear is that pregnant women can engender

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Trump’s “Trade Aid” Takes Road to Serfdom Paved by Congress

May 29, 2019

In early 2018, President Trump imposed duties on steel and aluminum imports under patently false pretenses. Despite overwhelming evidence to the contrary, Trump declared that the tariffs were required to ensure commodity supplies “necessary for critical industries and national defense.” In fact, military demand for steel and aluminum represents only a small fraction of U.S. production. Furthermore, our top source for these imports—by a significant margin—is Canada, a country whose industrial base is legally incorporated into U.S. defense planning.
Predictably, our trade partners retaliated with tariffs on almost 800 agricultural goods exported by the U.S., worth roughly $26 billion. To assist agricultural producers harmed by the president’s trade war, the Trump administration last

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Trump Isn’t Only “Constitutional Crisis” Afflicting Congressional Oversight

May 17, 2019

Earlier this week, Vox’s Sean Illing asked 10 law professors whether President Trump’s sweeping refusal to cooperate with congressional investigators has plunged the nation into “a constitutional crisis.”  I recommend the article, and I also observe that I’m 100% on Congress’s side regarding the legitimacy of its information queries. Indeed, I’m with my colleague Gene Healy, who has rightfully Tweeted that, “#ExecutivePrivilege is something judges just made up out of penumbras and emanations of Article II.”
For this post, however, I argue that congressional oversight, per se, is in its own state of “constitutional crisis” wholly independent from Trump. Specifically, I will make two claims. First, I explain why congressional oversight always has been sub-optimal. Then, I explain why

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Preview of Oral Arguments in Kisor v. Wilkie

March 25, 2019

On Wednesday morning, the Supreme Court will hear oral arguments in Kisor v. Wilkie, an important administrative law case in which the Court is reconsidering the Auer doctrine, or controlling deference to an agency’s regulatory interpretations.
The immediate controversy pertains to James Kisor, a Vietnam veteran whose claim for disability benefits hinged on the interpretation of the term “relevant” in the Board of Veterans Appeals rules of procedure. Only when the board denied Mr. Kisor’s claim did the agency announce its interpretation unprompted and without having been briefed on the matter. Obviously, Mr. Kisor was given no advance notice of the new “rule” — which was really just a new interpretation of the word. Mr. Kisor appealed the denial of his claim to the Veterans Court,

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John Dingell and the Death of Institutional Pride in Congress

February 28, 2019

John Dingell, who represented southeastern Michigan for 59 years in the House of Representatives, died on 7th February. While I disagreed with virtually all of Rep. Dingell’s policy preferences, I very much admired the man for the institutional pride he took in Congress. It’s a quality sorely lacking in contemporary lawmakers.
Rep. Dingell was a master parliamentarian. He is famous in Washington D.C. for his steady accumulation of power as chairman of the Energy & Commerce Committee during the 1980s. Due to his efforts, Energy & Commerce presently exercises the broadest jurisdiction of any authorizing committee in Congress. 
From this perch, he regulated the regulators. His use of agency “details”—i.e., commandeering executive branch officials to assist in oversight—was legendary. His

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Trump Administration Proposes to Check Itself in Remarkable Kisor Brief

February 27, 2019

On Monday, the Solicitor General filed an extraordinary brief in Kisor v. Wilkie, a case in which the Supreme Court is reconsidering “Auer deference,” or binding judicial respect for an agency’s interpretation of its own regulation. The brief is remarkable, perhaps even unprecedented, because it reflects the evident desire of the president to cede significant power to another branch of government.
Under Auer’s canonical formulation, an agency’s regulatory interpretation is “controlling unless plainly erroneous or inconsistent with the regulation.” The problem is that, in practice, Auer allows agencies to bind the public with putatively nonbinding advisories, and thereby evade procedural safeguards.
Astonishingly, the government’s brief recognizes the harms engendered by Auer. In a

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In Defense of Incrementalism: A Response to Prof. Greve’s Proposal for Administrative Courts

February 15, 2019

For “anti-administrativists” like myself, what’s the best way to reform the administrative state? In a provocative post at Law & Liberty, Professor Michael Greve rejects our ilk’s dominant approach, which is to focus on judicial deference doctrines—in particular, Chevron deference to an agency’s interpretations of its enabling statute. Chevron is a “great white whale,” Greve argues, because even if it were overturned, it would merely return in another guise. On this point, he borrows Adrian Vermeule’s thesis that courts inexorably will defer to agencies, due to the latters’ relative advantage in subject matter expertise.
In lieu of the mainstream approach to reform, Greve proposes to overhaul administrative law. His iconoclastic idea is to abolish the “appellate review model” system

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Does Kisor Really Threaten the Foundations of Administrative Law?

February 4, 2019

As I describe alongside Ilya and Trevor in our recent filing, in Kisor v. Wilkie, the Supreme Court has agreed to revisit the Auer v. Robbins doctrine, which requires courts to give binding deference to an agency’s interpretation of its own regulations.
Setting aside the arguments for overturning Auer, the purpose of this post is to address a couple recent arguments in favor of retaining Auer. Every day last week, the invaluable SCOTUSblog published a post in a symposium about Kisor. For my part, I was struck by two points repeated by some or all of the proponents of Auer deference.
The first eye-catching claim is that Kisor is a bad vehicle for addressing many of the complaints raised against Auer deference. Explains Prof. Gillian Metzger:
Central to the attack on Auer are concerns

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Congress Isn’t Only Branch Enabling Trump’s Emergency Threats

January 24, 2019

As President Trump delivered a weekend salvo in the ongoing shutdown battle, White House aides reminded reporters that the president remains convinced of his “legal authority to declare a national emergency at the border, which could allow him to redirect Pentagon funding to a build a border wall.” The flacks’ messaging was clear: If congressional Democrats turn a deaf ear to Trump’s latest proposal, then the president retains recourse to his emergency powers.
In a thoughtful post earlier this month, my colleague Gene Healy explained that Trump’s threats are far from idle, and that the Congress bears much of the blame for this bizarre scenario whereby the president can win domestic policy priorities by declaring an ad hoc emergency. Gene pointed to “at least two provisions of the U.S.

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