Administrative Law & Regulation

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Recent Publications

   Halbig v. Sebelius - The Next Threat to Obamacare? - Podcast

healthcare reform

The authors of the PPACA envisioned a system in which state governments would establish health insurance exchanges in which individuals could shop for health coverage and receive tax credits and subsidies for the purchase of qualifying health plans. After the law was passed, however, a majority of states refused to set up their own exchanges, leaving the task to the federal government. The IRS subsequently issued a rule purporting to authorize tax credits and cost-sharing subsidies in both state and federal exchanges. In Halbig v. Sebelius and three other cases pending in federal court, plaintiffs challenge the authority of the IRS to grant tax credits and cost-sharing subsidies in federal exchanges. These suits will help clarify the limits of agency authority to implement the PPACA and, if successful, these suits could have a significant impact on the implementation of the PPACA.


  • Prof. Jonathan Adler, Johan Verheij Memorial Professor of Law, Case Western Reserve University School of Law
  • Prof. Nicholas Bagley, Assistant Professor of Law, University of Michigan Law School

[Listen now!]

   FDA's Proposed Ban of Trans Fat in Processed Food - Podcast


The Food and Drug Administration (FDA) has taken the first step to effectively ban trans fat from processed food. In November 2013, the Food and Drug Administration published a tentative determination that partially hydrogenated oils, which are the major dietary source of trans fat in processed food, are not “generally recognized as safe” (GRAS). This agency action, if finalized, “could, in effect, mean the end of artificial, industrially-produced trans fat in foods” according to the FDA. This unprecedented action would come after consumption of trans fat from products containing partially hydrogenated oils has declined from 4.6 grams a day in 2003 to about 1 gram a day in 2012. What is the legal authority for this action and are there legal arguments against the FDA moving forward in the proposed manner? What are the policy arguments for and against this action to eliminate “artificial” trans fat from the food supply? Could other aggressive actions against “unhealthy” ingredients such as caffeine, sodium and sugar be on the horizon?


  • Daren BakstResearch Fellow in Agricultural Policy, The Heritage Foundation
  • Stuart Pape, Partner, Patton Boggs LLP

[Listen now!]

   Redressing Politicized Spending

White HouseFor the most part, Congress has failed to cabin agency discretionary funding powers. The Office of Management and Budget (OMB) has issued guidelines for agency spending, but these merely encourage a system of merit-based discretionary decision making.  And, unless backed by legislative teeth, these guidelines have proven ineffective as a check against politicized spending. However, judicial remedies are available for persons injured when political or other biases infect federal agency discretionary spending; these remedies would ensure fairness and remedy the harms associated with overbroad agency power. Therefore, this article reviews both statutory and constitutional remedies and suggests approaches claimants can take to obtain judicial review and thereby increase agency accountability for discretionary spending decisions. Part I analyzes the rise of politicized discretionary spending. Part II examines the current standards of review for discretionary agency decisions, including the Administrative Procedure Act, the Tucker Act, implied contractual duties, and suggested improvements to redressability. Part III discusses constitutional theories for challenging politicized decision making, including Bivens claims and procedural due process theories. This article concludes that congressional action clarifying that persons injured by politicized agency discretionary spending have standing would be useful to help check agency overreach....[Read More!]

   FDA Involvement in Off-Label Drug Use - Event Video

FDA Involvement in Off-Label Drug Use - Event VideoOn January 13, 2014 the Southwestern Law School Federalist Society student chapter hosted a debate about the FDA's role in regulating off-label drug use featuring Professor Richard Epstein, the Laurence A. Tisch Professor of Law at NYU and the Kirsten Bedford Senior Fellow at the Hoover Institution, and Ryan Abbott, Associate Professor of Law at Southwestern Law School and Visiting Assistant Professor of Medicine at the David Geffen School of Medicine at UCLA.


  • Prof. Ryan Abbott, Southwestern Law School
  • Prof. Richard Epstein, NYU Law School
  • Moderator: Dean Susan Prager, Southwestern Law School

Southwestern Law School
Los Angeles, CA

[Watch now!]