Administrative Remedies

Until June 2024, the Social Security Administration was denying disability claims on the grounds that applicants could work as pneumatic tube operators — a job that functionally disappeared decades ago. The agency's catalog of occupations hadn't been updated since 1991. Congress noticed. Courts complained. The agency issued two emergency messages. The fix removed 114 jobs nobody was citing anyway and added a documentation requirement to 13 jobs people were. The vocational expert who cited pneumatic tube operator last year can cite it again next year, as long as they say an extra sentence.That catalog isn't the problem. It's the symptom. In this episode, Gwen and Marc walk through what Social Security disability adjudication actually looks like when you run it two and a half million times a year:The five-step sequential evaluation that decides every claim — substantial gainful activity, severity, the listings, past work, and the step five question that wins or loses most cases: is there any other job in the national economy you could do?The grids — literal rows and columns where you plug in age, education, work history, and RFC, and the table tells you whether you're disabled. The Supreme Court blessed this trade in Heckler v. Campbell: uniformity over individualized judgment, explicitly because the alternative would "hinder needlessly an already overburdened agency"The age cliff: at fifty-four, the grids say not disabled. At fifty-five, same medical condition, same RFC, same education, same work history — disabled. The borderline rule that's supposed to soften this treats five months as too far awayHow every structural feature from the trilogy — the forty-six point judge-level variation, the weak internal review, the ex ante control mechanisms — runs through the credibility finding and the RFC, which determine where you land on the gridsThe Matthews problem at scale: the test counts administrative burden as a factor, and at two and a half million applications a year, that factor dominates the math. There's no doctrinal floor on how thin process can get once the system is big enoughPeople die waiting for hearings. The GAO and Social Security's own inspector general have documented it. At a nine-month average wait — an improvement from the fifteen months it was running in 2023 — that number is meaningful every year. That's not the system failing. That's the system working as designed, at volume.

In the final episode of a three-part series on how agencies actually produce outcomes, Gwen and Marc trace the mechanisms that did the work — all of them upstream of the hearing room and mostly invisible from outside:Case completion targets that measure speed but not thoroughness — and a Seventh Circuit concurrence warning that even well-intentioned production pressure "can alter the essential function of adjudication"Quality review rubrics that aren't published, shift with administrations, and can't be appealed — but feed into performance evaluations that have real career consequencesSocial Security Rulings that describe themselves as not having "the force and effect of law" and in the same sentence say they are "binding on all components" — binding policy issued without notice and commentThe 1984 case that saw it coming: Association of Administrative Law Judges v. Heckler, where the court found outcome-based targeting of ALJs "violated the spirit of the APA, if no specific provision thereof"Immigration as the amplified version: 700-case-per-year quotas for judges without APA independence protections, deciding cases where the stakes are deportationSomewhere out there is a claimant with the same diagnosis as someone approved three years ago by the same ALJ in the same office. That claimant gets denied — not because the case changed, but because the system around the judge changed. And nobody outside the agency can see why.

In 2018, Attorney General Jeff Sessions reached into a single immigration case, certified it to himself, and overruled the precedent that had let domestic violence survivors qualify for asylum. In 2021, Garland certified it back. In 2025, Bondy certified it away again. Three reversals on the same doctrine in seven years — no statute changed, no rulemaking happened. One signature each time.In this episode — the second in a three-part series on how agencies actually produce outcomes — Gwen and Marc move up a level from the hearing room and ask whether internal appellate review fixes the variation E13 documented. The textbook answer is yes: that's what review is for. The real answer is that "internal review" describes three very different machines, and none is primarily in the business of producing consistency.The APA baseline is permissive. 5 USC 557 gives the reviewing body "all the powers which it would have in making the initial decision" — including the power to redo credibility findings from a cold transcript. The ALJ who sat three feet from the witness gets reversed; the federal court then defers to the agency under substantial evidence review. The one person who actually saw the testimony is the one whose findings get displaced.Three agencies, three pullbacks. Social Security walks the default back via 20 CFR 404.970 — the Appeals Council acts only on legal error or want of substantial evidence. Immigration walks it back furthest via 8 CFR 1003.1 — IJ fact findings get clear-error review. The SEC operates closest to the default, where "all the powers" actually bites.Model 1 — Social Security: review mostly doesn't happen. The Appeals Council grants review in roughly 15-20% of cases. The rest get a one-paragraph denial. That denial opens the 60-day window to federal court, but reads to a lay claimant like a final rejection — because in ordinary English "denied" means you lost, while in admin-law English it means you've exhausted and the clock is running. Represented claimants know this. Unrepresented claimants miss the window and lose by default.Model 2 — Immigration: review is a policy instrument. The BIA designates decisions as precedential, binding every IJ in the country. Under 8 CFR 1003.1(h), the Attorney General can pull any case — pending or decided — and write a precedential opinion on it. Matter of A-R-C-G (2014), Matter of A-B- (2018), Garland's vacatur (2021), Matter of S-F-M (2025): the same doctrine swung four times across four administrations through a single referral mechanism. That isn't error correction. It's substantive policymaking through the review channel.Model 3 — Enforcement (SEC, FTC, NLRB): review is automatic and institutionally tilted. Every ALJ decision goes up. About three-quarters of SEC reversals favor the enforcement division — finding violations the ALJ didn't or raising penalties the ALJ imposed. The Commission supervises the enforcement staff, sets priorities, allocates their budget, and then sits as the appellate tribunal reviewing whether that same staff proved its case. No bad faith required; the incentives only run one way.Three failure modes, one conclusion: SSA fails by not reviewing; immigration fails by reviewing through a politically directed mechanism whose priorities shift with administrations; enforcement fails by reviewing through a body with an institutional stake in the result. Review corrects some errors and generates precedent where precedent gets designated. What it does not do — anywhere — is pull similar cases toward similar outcomes.Next episode: agencies don't shape outcomes by correcting decisions. They shape the conditions under which decisions get made.

A 2017 GAO study found that Social Security disability outcomes could swing by forty-six percentage points based solely on which ALJ heard the case. Same claimant, same record, same hearing office, different judge. Individual ALJ approval rates range from under ten percent to over ninety. That's not noise — it's the system.In this episode — the first of a three-part series on how agencies actually produce outcomes — Gwen and Marc step outside the hearing room and examine the three variables that shape results before a single question gets asked:Judge assignment: Random allocation protects against selective routing, but paired with forty-six points of variation, it produces something that looks like a lottery. The system chose neutrality over consistency — and consistency doesn't get recovered downstream.Representation: Claimants with attorneys get roughly double the approval rate of those without — not mainly because of what happens in the hearing, but because of record-building beforehand and something more structural: since ALJ decisions aren't published, the only way to know how a specific judge handles specific issues is to have appeared in front of them. Experienced local attorneys hold what amounts to privatized law — accumulated operational knowledge that doesn't exist in any public source.Geography: Hearing offices differ by ten to fifteen points in approval rates beyond what the mix of judges explains, driven by local economic conditions, regional medical infrastructure, and office-level practice cultures that develop over time.A national program, a single statutory standard, and systematically different outcomes depending on which judge you draw, whether you can afford a lawyer who knows that judge, and which office covers your zip code. The binding agency-level law that does exist — Social Security Rulings, HALLEX — covers a narrow band of interpretive questions. Everything outside that band is where the variation lives.Next episode: if horizontal consistency doesn't exist at the hearing level, does top-down appellate review fix it? Spoiler — it doesn't.

Two claimants walk into two hearing rooms in the same building on the same day. Same herniated disc, same imaging, same attorneys, same legal standard. One walks out with benefits. The other doesn't. The difference isn't the evidence — it's that one ALJ believed her claimant and the other didn't.In this episode, Gwen and Marc break down the two factors that most often explain why identical cases produce opposite outcomes:How Social Security overhauled its credibility framework in 2016 to shift from "do I believe this person" to "are these symptoms consistent with the record" — and why ALJs are still making character judgments anywayThe specificity principle: why "a sharp, stabbing pain that radiates down my right leg to my knee" carries more weight than "it really hurts" — and why admitting what you can do makes you more believable about what you can'tSocial media, surveillance, and the pattern problem — it's not the concert photo that destroys your case, it's the gap between the photo and what you told the judgeThe boilerplate credibility finding that showed up in thousands of decisions and why the Ninth Circuit said summarizing the medical evidence isn't the same as explaining why you don't believe the claimantThe structural tension at the heart of burden of proof: the APA says the proponent bears the burden, which means the claimant in a benefits case loses on a 50/50 record — even though the ALJ was supposed to be helping develop that recordWhy that interaction plays out completely differently in asylum, where the substantive standard is more generous but the evidence base can be so narrow that a single credibility finding is the entire caseCredibility determines how much of your evidence the judge credits. Burden determines how much credited evidence you need. And which ALJ ends up in the room with you may matter more than either — which is exactly where the next episode picks up.

An insurance adjuster spends thirty minutes on your roof, photographs what they photograph, and writes "minor cosmetic damage" instead of "structural compromise." That characterization is now in the record — and every reviewer after that is seeing the damage through that adjuster's eyes.Gwen and Marc follow a single person — Kathleen, a warehouse supervisor with degenerative disc disease — through every stage of the Social Security disability system, from the field office application to federal court review. Along the way, every doctrine from Season 2 shows up on the timeline: the Roth property interest gap that leaves initial applicants without constitutional protection, the Mathews balancing test that said live hearings weren't required, the inquisitorial model that makes the ALJ simultaneously investigator and judge, and the substantial evidence standard that makes the record nearly untouchable on appeal.The episode then contrasts Kathleen's years-long journey with the enforcement side — what happens when the government comes after a company — where constitutional protections, legal counsel, and procedural leverage appear from day one.The hearing matters. But the case was shaped long before anyone walked into the room.

Less than two years after the Supreme Court's decision in SEC v. Jarkesy, the Fifth Circuit has applied the same constitutional logic to the FTC — and the implications are far bigger than one agency.In Intuit v. FTC, the court vacated a cease-and-desist order against TurboTax's "free" advertising, holding that the FTC's in-house adjudication of deceptive advertising claims violates the separation of powers. The agency that Congress deliberately designed in 1914 to adjudicate cases in-house — with bipartisan structure, Senate-debated architecture, and over a century of practice — just had that design declared unconstitutional in the Fifth Circuit.In this episode, Gwen and Marc break down:Why deceptive advertising under Section 5 shares enough of a "common core" with common law fraud to require an Article III courtThe Fifth Circuit's significant extension of Jarkesy: the private rights analysis follows the claim, not the remedy — meaning even cease-and-desist orders (equitable relief) can trigger the Article III requirementWhy the FTC's 110-year history of in-house adjudication didn't save itThe deception/unfairness distinction — and why how the FTC frames a complaint may now be the constitutional questionThe real-world tradeoff: more process for regulated parties means slower, costlier, and fewer enforcement actions for consumersThis decision is binding only in the Fifth Circuit, but it's grounded in Supreme Court precedent — giving any respondent in an FTC administrative proceeding nationwide a roadmap to challenge in-house adjudication of deception claims.Jarkesy was never just an SEC case. The next domino could be the CFPB, the FDA, or any agency whose enforcement authority traces back to common law wrongs.Released the day before Tax Day — which, for the record, hasn't actually fallen on April 15th since 2021.

The parents leave a rule: milk with dinner. The babysitter enforces it — no problem. But when one kid hits the other, does the babysitter handle that too? She saw the whole thing, she knows the context, and she's been managing exactly these situations for years. But hitting was wrong before she ever showed up. In SEC v. Jarkesy, the Supreme Court drew that same line through agency enforcement. Gwen and Marc trace the public rights doctrine from Murray's Lessee in 1855 through Atlas Roofing in 1977 — the case agencies relied on for nearly fifty years — to explain why the Court decided that when the SEC pursues civil penalties for securities fraud, the Seventh Amendment requires a jury trial. The problem: the opinion never clearly explains why fraud causing financial loss is closer to the common law core than negligence causing death, which Atlas Roofing had called a public right. The result is a new boundary that no one can precisely locate, with every enforcement agency left wondering which of its cases can stay in-house and which now have to go to federal court — and a likely reduction in enforcement that protects innocent defendants and guilty ones alike.

Can the government send you to a foreign prison without giving you any way to say, "You've got the wrong person"? In this companion episode to their Matthews v. Eldridge discussion, Gwen and Marc apply the due process framework to three developments unfolding in real time: the administration's use of the 1798 Alien Enemies Act to deport Venezuelan nationals without individualized hearings, the Abrego Garcia case — where a man with a court order protecting him ended up in the exact prison an immigration judge said he couldn't be sent to — and a new rule that would have made meaningful immigration appeals nearly impossible before a federal court blocked it. They run the Matthews factors on each, showing how a Bloomberg investigation found roughly 90% of those deported had no criminal record, why the government's "administrative error" defense proves the need for pre-removal checkpoints, and what happens when the government acts first and argues courts can't fix it later. This episode isn't about whether borders should be secure or whether gangs are dangerous — it's about the constitutional principle, enshrined before the Bill of Rights even existed, that the government must let you challenge your detention. Because when that breaks down, it doesn't just affect the people in custody. It threatens the structure that protects everyone.

Tornado watches, warnings, and sirens don't all mean the same thing — and if you live in Oklahoma, you know you don't even run to a shelter every time a siren goes off. You calibrate your response to the actual level of threat. The Supreme Court says due process works the same way.In this episode, Gwen and Marc break down Mathews v. Eldridge — the due process balancing test that has governed how every federal agency designs its procedures for the past fifty years. The test asks three questions: How serious is what you stand to lose? How likely is the government to get it wrong without more process? And what would it actually cost to do more? The answers determine how much process the Constitution requires before the government acts — and whether you get a hearing at all before your benefits stop, your license is suspended, or you're barred from flying.Working through Social Security disability terminations, ten-day school suspensions (Goss v. Lopez), civil service firings (Loudermill), and the no-fly list, they show how the same three-factor framework produces dramatically different results depending on context — from a full evidentiary hearing to a conversation in a principal's office.The sharpest tension: Mathews said that paper review of medical evidence was good enough to terminate disability benefits without a prior hearing. But for conditions like chronic pain, depression, and fibromyalgia — where credibility is everything — a paper review misses exactly what a hearing would catch. The constitutional minimum and the practical reality diverged, and eventually Congress had to step in.Mathews doesn't just tell courts how to evaluate procedures after the fact. It's the design specification agencies are supposed to use when they build their systems in the first place — and when they don't, courts use it to force a redesign.

Gwen and Marc cover the cases that define what counts as "property" for due process purposes—and why the answer to that question determines whether the Constitution shows up at all.They contrast two nurses: Linda, who has her license suspended without a hearing, and Kevin, who is denied a license application with no explanation. Same state, same nursing board, same situation—but Linda gets constitutional protection while Kevin gets nothing. The difference? Linda has a property interest; Kevin has only a "unilateral expectation."Gwen and Marc work through Board of Regents v. Roth, which establishes that property interests aren't created by the Constitution—they're created by state law, statutes, regulations, and contracts. They examine Perry v. Sindermann, where the Supreme Court said agencies can't make promises with one hand and disclaim them with the other. They discuss Cleveland Board of Education v. Loudermill, which holds that once a state creates an entitlement, it can't strip away the procedural protections that come with it.They also tackle Town of Castle Rock v. Gonzales, the tragic case where three children were murdered after police failed to enforce a restraining order—and the Supreme Court said there was no property interest in police enforcement, even when the statute said "shall arrest." Gwen and Marc explore the uncomfortable reality that due process protects you when the government takes something you have, but doesn't require the government to act for you.Through examples ranging from hair braiding licenses to civil service employment, they show how program design isn't neutral—it's constitutional architecture.They CoverBoard of Regents v. Roth: "legitimate claim of entitlement" versus "unilateral expectation"Perry v. Sindermann: how mutually explicit understandings create property interestsCleveland Board of Education v. Loudermill: why states can't define away procedural protectionsTown of Castle Rock v. Gonzales: the narrow gate for entitlements and the limits of mandatory languageLiberty interests and the stigma-plus requirementHow agencies design programs to create or avoid constitutional protectionsReal-world examples: professional licensing, government employment, welfare benefitsFeatured CasesBoard of Regents v. Roth (1972)Perry v. Sindermann (1972)Cleveland Board of Education v. Loudermill (1985)Town of Castle Rock v. Gonzales (2005)Key ConceptsLegitimate claim of entitlement: The standard from Roth that determines whether you have a property interestConstitutional architecture: How agencies design programs to trigger or avoid due process requirementsStigma-plus test: Reputation damage alone isn't enough—you need tangible harmShall versus may: Why mandatory statutory language doesn't always create entitlements

Gwen and Marc cover the foundational question of procedural due process: Why does the Constitution require the government to give you notice and a hearing before taking something away?They distinguish procedural due process (how the government acts) from substantive due process (whether it can act at all), explaining why these terms constantly trip people up. They explore why accuracy isn't the only value—legitimacy and dignity matter even when the government gets the right answer. Through examples like welfare terminations and driver's license suspensions, they examine who bears the cost when government makes mistakes and why the timing of process matters as much as the amount of process.Gwen and Marc discuss Goldberg v. Kelly and Justice Brennan's recognition that cutting someone off from the means of survival while they wait for an appeal isn't just harsh—it undermines their ability to fight back. They also introduce the critical threshold question that controls everything: Does this action even count as a deprivation of life, liberty, or property? If not, the Constitution has nothing to say about it.They CoverThe difference between procedural and substantive due processWhy legitimacy matters even when outcomes are correctHow risk allocation determines who pays for government mistakesThe timing problem: pre-deprivation versus post-deprivation hearingsGoldberg v. Kelly and welfare benefit terminationsReal-world examples: Social Security, driver's licenses, nursing licensesThe threshold question: What counts as life, liberty, or property?Featured CasesGoldberg v. Kelly (1970)Fuentes v. Shevin (1972)

You walk into a hearing expecting a neutral judge who will listen to both sides. Instead, you find a judge who spent months building your case file—ordering exams, gathering records, forming preliminary views. Is this a fair hearing or a predetermined outcome?This episode explores the Social Security disability system, the largest adjudication system in the United States, where administrative law judges both develop the evidence and decide the case. We contrast adversarial and inquisitorial models of justice, examine why the U.S. selectively borrowed from civil law systems without their safeguards, and unpack the cognitive risks—confirmation bias, ownership effects, and implicit prejudgment—that emerge when investigation and adjudication combine in a single person.We also grapple with a harder question: Was this system designed wrong, or is it actually the more humane choice for vulnerable claimants who can't afford lawyers and wouldn't survive a fully adversarial fight?Key ConceptsAdversarial vs. Inquisitorial Systems: The fundamental difference between party-driven investigation (U.S. courts) and judge-driven investigation (civil law systems), and why mixing them creates new problemsThe Duty to Develop the Record: How ALJs are required to gather evidence to ensure claims are fairly decided, even when claimants are unrepresentedConfirmation Bias in Adjudication: Why forming preliminary views while building the record creates a cognitive loop that's difficult to escapeStructural Bias vs. Individual Bias: The difference between proving an individual judge is biased and identifying systemic risks in how roles are combinedConsultative Examinations: How ALJ-ordered medical exams can both help and hurt claimants, depending on what they revealCases & Regulations DiscussedWithrow v. Larkin, 421 U.S. 35 (1975)Establishes that combining investigative and adjudicative functions doesn't automatically violate due processCreates a high bar: challengers must prove "actual bias" or overcome the "presumption of honesty and integrity"Sets the constitutional framework that allows Social Security's current structure20 C.F.R. § 404.944 - ALJ's Duty to Develop the RecordCodifies the affirmative obligation to develop a complete recordRequires ALJs to request additional evidence, seek records, and order consultative exams when neededEpisode HighlightsWhy This Matters: Over 500,000 disability hearings occur annually—more than the entire federal court system combined. Most claimants have already been denied twice and are unrepresented. The structure of these hearings determines whether they get a fair shot.The Design Choice: The system wasn't broken by accident—it was intentionally designed to help claimants who couldn't navigate an adversarial process. The alternative would be government attorneys arguing against every disability applicant.The Cognitive Problem: Even well-intentioned ALJs face predictable psychological risks when they develop evidence and then judge it. The bias isn't malicious—it's structural.The Constitutional Standard: Courts have upheld this structure because proving "actual bias" is nearly impossible when the bias operates through investigation choices rather than overt prejudice.

When you challenge a government decision, the outcome may depend less on the facts of your case than on which kind of judge you happen to get. Federal administrative adjudication runs on a spectrum — and most people don't know where they fall on it until they're already in the room.In this episode, Gwen and Marc map that spectrum. Administrative law judges (ALJs) sit at the top, with salary protections, for-cause removal protections enforced by an independent body, and no performance reviews tied to how often they side with the agency. At the other end, immigration judges are DOJ attorneys who can be fired mid-hearing — and in 2025, that's exactly what's been happening, with over 125 immigration judges removed and military lawyers being brought in as replacements with no immigration law experience required.In between sits the IRS Independent Office of Appeals, where settlement officers conduct collection due process (CDP) hearings with real structural protections — including a ban on ex parte contact with other IRS employees — but without the same removal insulation as ALJs.The episode's sharpest finding: Social Security disability ALJ approval rates vary by as much as 80 percentage points depending on which judge you're assigned. Same statute. Same definition of disability. Different judge, different outcome. That's not judicial discretion — that's a judge lottery.And now the Supreme Court, following the logic of Lucia v. SEC and the unitary executive theory, may be moving toward stripping ALJs of their independence protections entirely — returning federal adjudication to something resembling the pre-APA world Congress designed the Administrative Procedure Act of 1946 to fix.

Seven opinions. One hundred and seventy pages. Six justices agree the tariffs are unlawful — but they can't agree on why, and the reason matters for every future case where the executive claims sweeping power from an old statute. In Part 2, we walk through all seven opinions in Learning Resources v. Trump. Roberts applies the major questions doctrine for the first time against a Republican president — but only three justices sign on. Barrett writes to say the doctrine is just textualism done right. Gorsuch writes a Festivus concurrence going after every other justice on the Court. Kagan says she doesn't need the doctrine at all. Kavanaugh — who helped build the major questions doctrine — abandons it. And Thomas stakes out a solo position on nondelegation that could resurface for years. This is the clearest map yet of where every justice stands on the most contested question in administrative law.

On February 20, the Supreme Court ruled 6-3 that the International Emergency Economic Powers Act does not authorize the President to impose tariffs. In Part 1 of our emergency coverage, we break down the textual holding that all six majority justices agreed on — why "regulate" has never meant "tax" anywhere in the U.S. Code, why IEEPA's fifty-year history cuts against the government, and why the greater-includes-the-lesser argument doesn't work when you're comparing regulation to taxation. We also explain why we split this into two episodes: the distinction between the binding holding and the plurality's major questions doctrine analysis matters enormously a distinction a lot of the commentary is missing.

When an agency decides your case, what kind of process do you get?Sometimes it’s a full trial-type hearing with witnesses, cross-examination, an independent decisionmaker, and a written opinion. Other times it’s a paper review and a short explanation.In this episode, we map the adjudication spectrum under the Administrative Procedure Act (APA) — from “straight to your room” to a full family meeting.What We CoverThe difference between formal and informal adjudicationThe “magic words” that trigger full procedural protections: “on the record after opportunity for agency hearing”Why most agency decisions — roughly 90% or more — are informalWhat formal adjudication actually includes:NoticeRight to counselPresentation of evidenceCross-examinationDecision based exclusively on the recordAdministrative Law Judge (ALJ)Why the APA says almost nothing about informal adjudicationThe “black hole” of informal processHow due process, organic statutes, and agency regulations fill the gapWhy courts generally cannot impose extra procedures beyond what the APA requires (Vermont Yankee)The massive volume problem: millions of decisions, only about 2,000 ALJsThe justice gap created by delay and procedural filteringKey CasesUnited States v. Florida East Coast Railway A statute that says “hearing” is not enough. Without the magic words, you don’t get formal adjudication.Vermont Yankee Nuclear Power Corp. v. NRDC Courts cannot add procedural requirements beyond those required by statute.Real-World ExamplesPassport applicationsSocial Security disability determinationsImmigration interviewsStudent loan discharge decisionsBorrower defense claimsPublic Service Loan ForgivenessThe same APA framework governs all of them.Why This MattersYour rights depend on where you fall on the spectrum — and you don’t get to choose.Formal hearings are expensive and slow. Informal decisions are fast but thin. The system is built around tradeoffs: speed versus accuracy, efficiency versus fairness.For many people, the informal stage filters out their claim before they ever reach a hearing. The structure of the system — not just the merits of the case — often determines the outcome.

This episode introduces one of the most important structural distinctions in administrative law: the difference between rulemaking and adjudication. Agencies don’t just enforce law — they also create policy. Sometimes they do it prospectively through general rules. Other times they do it case-by-case while deciding what happens to a specific party. That choice affects procedure, fairness expectations, and how quickly entire industries can change.The Core DistinctionRulemakingForward-lookingGeneral applicabilitySets standards before conduct happensTypically uses notice-and-comment proceduresAdjudicationBackward-looking (or present-focused)Applies to specific parties and factsDetermines liability, rights, or obligations in individual casesProcedural protections vary widelyWhy This Distinction ExistsGovernment can’t realistically give individualized hearings before adopting rules that affect millions of people. But when the government is deciding what happens to a specific person or company, due process concerns become much stronger.Constitutional FoundationLondoner v. Denver (1908)Individualized determinations → hearing requiredBi-Metallic Investment Co. v. State Board of Equalization (1915)General rules affecting many people → no individual hearing requiredThese cases still structure how courts think about procedural rights today.The Gray Area: Agencies Can Make Policy Through AdjudicationUnder Supreme Court precedent (Chenery), agencies can choose whether to announce policy through rulemaking or through individual cases.That means agencies can:Announce a new standardApply it in the same caseEffectively change national policy overnightReal-World Example: Browning-Ferris (NLRB, 2015)The NLRB expanded the definition of “joint employer” through a single adjudication.Why it mattered:Affected staffing agencies, franchises, contractors, and supply chainsTriggered years of litigation, rulemaking reversals, and political conflictShows how one case can reshape an entire sectorWhy This Matters Outside Law SchoolThis structure affects:Labor rightsEnvironmental regulationData security expectationsFinancial regulationHealthcare complianceLicensing and professional disciplineOften, regulated parties don’t get a clean rulebook. They piece together standards from enforcement actions.Key TakeawayAgencies exercise two fundamentally different kinds of power:Setting general rules for the futureDeciding what happens to specific partiesWhich path they choose determines procedure, fairness expectations, and how predictable regulation feels.Coming NextNext episode: The spectrum of adjudication procedures — from trial-like hearings to simple denial letters — and why the same statute can produce radically different levels of process.

In the season finale, Gwen and Marc turn to Corner Post v. Board of Governors, a decision that reshapes when federal regulations can be challenged—and potentially destabilizes decades of settled law. They open with a property-law analogy, explaining the doctrine of “coming to the nuisance” and why legal systems protect settled expectations and reliance.They then explain how statutes of limitations have traditionally functioned in administrative law: challenges to regulations had to be brought within six years of issuance. Corner Post upends that understanding by tying accrual to standing, allowing newly formed entities to challenge long-standing regulations as if they were brand new.Walking through the facts of the case—a challenge to Federal Reserve interchange-fee rules by a company formed years after the regulation—the episode explains why the Court’s reasoning feels intuitive in individual litigation but becomes dangerous when applied to nationwide regulatory schemes. Gwen and Marc show how this eliminates finality, enables strategic plaintiff creation, and supercharges forum shopping.The episode then examines how Corner Post interacts with Loper Bright and the Major Questions Doctrine, creating a multiplier effect: less deference, stricter substantive limits, and perpetual vulnerability to challenge. The result, they argue, is a regulatory system where no rule is ever truly settled.The season closes by reflecting on what these cases mean collectively for the administrative state—and why understanding them is essential for anyone trying to make sense of modern governance.What They Cover in This EpisodeHow statutes of limitations normally workAccrual, standing, and regulatory finalityThe facts and holding of Corner Post“Coming to the regulatory nuisance”Reliance interests and settled expectationsStrategic plaintiff creation and forum shoppingCircuit fragmentation and regulatory chaosHow Corner Post compounds Loper Bright

In this episode, Gwen and Marc examine Loper Bright v. Raimondo, the Supreme Court decision that formally overruled Chevron deference after forty years. They begin with an analogy about inconsistent babysitters to explain the core concern motivating the Court: agency interpretations that change across administrations, creating instability and unpredictability.They then turn to the facts of the case itself, involving a federal rule requiring herring fishing companies to pay for onboard observers. Under Chevron, the agency’s interpretation likely would have survived as reasonable. Instead, the Court used the case to eliminate Chevron entirely, holding that courts must exercise “independent judgment” when interpreting statutes—even when Congress has left ambiguity.From there, Gwen and Marc organize the critique of Loper Bright around three themes. First, they argue that the Court rewrote history by treating Chevron as a modern aberration, despite centuries of judicial deference to agency expertise. Second, they explain how the decision misunderstands modern governance, where Congress necessarily relies on agencies to interpret flexible statutory language. Third, they show how the practical consequences are already unfolding in the lower courts, producing circuit fragmentation rather than stability.Using concrete examples—from food labeling to labor law to environmental regulation—they illustrate how replacing agency expertise with judicial interpretation affects everyday life. The episode closes by exploring the democratic implications of shifting interpretive power from politically accountable agencies to life-tenured judges.What They Cover in This EpisodeThe facts behind Loper BrightHow Chevron worked and why it matteredThe Court’s reading of the APA“Independent judgment” and the “single best reading”Pre-Chevron history of judicial deferenceJudges as generalists versus agency expertsCircuit fragmentation after Chevron’s demiseDemocratic accountability and judicial power

In this episode, Gwen and Marc step back from Chevron to examine the older doctrine that both preceded it and now survives it: Skidmore deference. They begin with a medical analogy that contrasts expert judgment grounded in examination and experience with advice that merely sounds confident—setting up the central question of Skidmore: when agencies lack the power to control, how much weight should courts give to what they say?They walk through Skidmore v. Swift & Co., a 1944 case involving firemen at a meatpacking plant and whether on-call waiting time counts as compensable work. The key issue was not disagreement over expertise, but authority: the agency administering the Fair Labor Standards Act had issued extensive guidance but lacked formal rulemaking power. The Court’s response—giving agency interpretations weight proportional to their persuasiveness—created a doctrine that applied specifically when agencies lacked the force of law.From there, Gwen and Marc situate Skidmore in historical context, contrasting it with highly deferential cases like Yakus v. United States and showing that Skidmore was never meant to replace strong deference where Congress had delegated rulemaking authority. They then explain how Skidmore operates in practice through its familiar factors—thoroughness, reasoning, consistency, and expertise—and why it creates flexibility at the cost of predictability.The episode closes by tracing Skidmore’s resurgence after United States v. Mead Corp., which limited Chevron to actions with the force of law and returned Skidmore to center stage for guidance documents, opinion letters, and other informal agency actions. This episode sets up the post-Chevron world by explaining what kind of deference remains—and what has been lost.What They Cover in This EpisodeThe facts and holding of Skidmore v. Swift & Co.Why lack of rulemaking authority mattered“Power to persuade, if lacking power to control”The historical baseline of strong agency deferenceThe Skidmore factors and how courts apply themWhy Skidmore is flexible but unpredictableUnited States v. Mead Corp. and the return of SkidmoreHow much of modern governance operates under Skidmore

Who gets to decide what the law means—Congress, agencies, or courts?For forty years, that question was largely answered by a single Supreme Court case: Chevron. Under what became known as “Chevron deference,” courts were required to defer to an agency’s reasonable interpretation of an ambiguous statute the agency administers.In this episode, Gwen and Marc explain what Chevron deference actually was, why it mattered so much to the administrative state, and how it quietly shaped everyday government decision-making—from environmental rules to labor protections to healthcare policy.This isn’t an episode about technical doctrine for its own sake. It’s about institutional power.Together, we explore:Why Congress often writes ambiguous statutes—and why that’s not a bug, but a featureHow Chevron shifted interpretive authority from courts to agenciesWhat courts were supposed to do under Chevron, and what they often did insteadWhy Chevron made agencies more powerful—but also more vulnerableHow Chevron fits into the broader story of delegation, expertise, and democratic accountabilityBy the end of the episode, you’ll understand why Chevron became one of the most important—and controversial—doctrines in administrative law, and why battles over “who decides” were inevitable.This episode sets the stage for later conversations about Skidmore, the major questions doctrine, and what happens when Chevron disappears.

Picking up where they left off, Gwen and Marc turn to the two competing versions of the Major Questions Doctrine: the weak, interpretive version and the strong version that demands near-microscopic specificity. And to show how these versions operate in real life, they walk straight into the blockbuster 2023 case Biden v. Nebraska, where the Supreme Court struck down the administration’s student-loan forgiveness plan.The statutory text seemed generous: the Secretary could “waive or modify” student-loan provisions during a national emergency. COVID was a national emergency. Waive means eliminate. Modify means change. Yet the Court said that forgiving $430 billion in loans for 43 million borrowers was simply too major — and that even broad, literal statutory text wasn’t clear enough. Marc both appreciate Roberts’s now-famous line comparing the government’s interpretation of “modify” to the way the French Revolution "modified" the country's nobility.They use this to show the full force of the strong version of the doctrine: for truly significant decisions, ordinary delegation isn’t enough. Courts require explicit authorization, tailored to the precise scenario an agency faces — a level of specificity Congress almost never provides. Justice Kagan’s dissent raises the alarm: the doctrine is becoming a “get-out-of-text-free card,” enabling courts to invalidate policies they dislike even when Congress’s language is unambiguously broad.The episode then zooms out to the real-world consequences: agencies are becoming more cautious, breaking big rules into smaller ones, searching for hyper-specific statutory hooks, and gaming the system simply to survive judicial review. Gwen and Marc map out how this rising skepticism interacts with the Court’s broader project — reining in agencies through major questions, Chevron, and structural challenges all at once.Takeaway: The stronger the doctrine gets, the harder it becomes for agencies to act — even when Congress wrote broad authority on purpose. The Court says Congress must speak clearly on big questions. But in practice, the demand for “extraordinary clarity” risks paralyzing modern governance.

Gwen and Marc open this episode with a deceptively simple babysitter analogy: you tell the sitter “use anything in the kitchen,” but you don’t expect her to mount a cutting board to the wall and teach knife-throwing, or install a $6,000 closet system. The permission technically covers those choices — but that’s clearly not what you meant. That disconnect becomes the doorway into the Major Questions Doctrine, the Court’s newest tool for saying: “If Congress meant to authorize something this big, it would’ve said so clearly.”From there, they rewind to Brown & Williamson, when the FDA tried to regulate tobacco by treating nicotine like any other drug. The statutory text fit — in some ways perfectly — yet the Court refused to believe Congress hid such massive economic and political authority inside ordinary words. Gwen shows how that early instinct, even without a label, planted the seeds of today’s doctrine.Then the episode turns to the decision that christened the doctrine by name: West Virginia v. EPA. Roberts framed the Clean Power Plan not as routine emissions regulation, but as a wholesale restructuring of the American energy sector — far too consequential, he argued, for an agency to find tucked inside an older statute. Through the Court’s own language, Gwen and Marc unpack what counts as a “major question”: billions in economic impact, deep political salience, dramatic expansions of authority, and situations where Congress has repeatedly considered but rejected similar proposals.But they also highlight the doctrine’s shadows. The Court has never articulated a clear test; agencies don’t know how many “factors” are enough; and the dividing line between ordinary policymaking and “major” policymaking keeps shifting, depending on who’s drawing it.Takeaway: Sometimes the words of a statute technically fit — but the Court refuses to believe Congress granted vast power by implication. When the decision is big enough, the Court demands clarity Congress rarely provides.

In this episode, Gwen and Marc break down the Supreme Court’s oral argument in Trump v. Slaughter, the case that could upend nearly a century of precedent on independent agencies. Building on Part 1’s explanation of how the case reached the Court, this episode examines what happened in the courtroom: the justices’ questions, the strategies on both sides, and the constitutional stakes that hovered over every exchange.They walk through the Solicitor General’s forceful attack on Humphrey’s Executor, including his description of the precedent as a “decaying husk,” and the Court’s repeated efforts to understand where the limits of the unitary executive theory might lie. Gwen and Marc explore sharp exchanges with Justices Kagan, Sotomayor, Jackson, Barrett, Roberts, Gorsuch, and Alito, from concerns about the scope of executive power to whether any multi-member commission could survive under the government’s theory.They also examine what a ruling for Trump could mean in practice — from immediate at-will removal of commissioners to the ripple effects on agencies like the FTC, SEC, NLRB, and the Federal Reserve. Finally, they offer a grounded reading of where the Court seems headed and why even the “narrow” options would still reshape the administrative state.This concludes their two-part series on Trump v. Slaughter. When the decision comes down, they will return with a follow-up episode analyzing the Court’s holding and its implications.⭐ What They Cover in This EpisodeThe Solicitor General’s argument for overruling Humphrey’s ExecutorWhy the government describes independent agencies as constitutionally incompatibleThe justices’ concerns about where the unitary executive theory stopsSotomayor’s “for now, for now” challengeKagan’s slippery-slope questionsGorsuch’s nondelegation angle and the “wolf comes as a wolf” momentBarrett and Roberts exploring “narrower” pathsThe debate over single-director vs. multi-member agenciesHow a ruling could affect the FTC, SEC, NLRB, Fed, and beyondThe range of possible outcomes and what seems most likely

Trump v. Slaughter, Part 1: How We Got HereIn this episode, Gwen and Marc explore the road leading to Trump v. Slaughter, the Supreme Court case that places the very existence of independent agencies under constitutional scrutiny. After two episodes explaining why independent agencies exist and how they function, they turn to the core question now before the Court: can Congress insulate agency officials from at-will presidential removal?They walk through the events that brought this case to the Supreme Court, beginning with President Trump’s Inauguration Day decision to remove FTC Commissioner Rebecca Kelly Slaughter—an action taken without any allegation of misconduct and in tension with long-standing precedent from Humphrey’s Executor. They explain how the lower courts responded, why the Supreme Court took the case early, and what is at stake for agencies like the FTC, SEC, NLRB, and even the Federal Reserve.Along the way, Gwen and Marc revisit key administrative law cases, foundational constitutional theories, and the structural arguments both sides bring to the table. This episode takes listeners from the historical background and statutory framework all the way to the moment oral arguments begin.This is Part 1 of a two-episode series. Part 2 covers the oral argument itself, the justices’ questions, and the potential outcomes the Court is weighing.What They Cover in This EpisodeThe statutory and constitutional background of independent agenciesWhat happened on Inauguration Day and why it matteredHumphrey’s Executor and 90 years of precedentThe district court and D.C. Circuit rulingsWhy the Supreme Court took the case before judgmentTrump’s argument under Article II and the unitary executive theorySlaughter’s argument grounded in history, structure, and congressional designHow multi-member commissions differ from single-director agenciesWhat’s at stake for the modern administrative stateThe framework for understanding the oral argument in Part 2

Having laid out why independent agencies exist, Gwen and Marc turn to the harder question: what happens when a president decides he wants someone gone? This episode unpacks the constitutional and political fault lines around the president’s removal power — and why the ability to “fire the referee” is one of the most dangerous pressures in modern governance.The episode opens on the youth soccer field, where a bad call might enrage parents but doesn’t justify firing the ref mid-game. Gwen uses that intuitive norm to pivot into the most infamous political version of the same problem: the Saturday Night Massacre, when Nixon tried to purge the special prosecutor investigating him. The result wasn’t just chaos at DOJ — it was a national lesson in why removing investigators for doing their jobs destroys public trust.From there, Gwen and Marc trace the constitutional silence on removal, the founders’ disagreements, and the early battles in Myers and Humphrey’s Executor. They walk through the real-world consequences of presidential pressure — from FDR’s failed attempt to oust an FTC commissioner, to Nixon’s behind-the-scenes arm-twisting of the Fed, to the market panic triggered by rumors that President Trump might fire Chair Powell. Each example shows how fragile independence becomes when removal power turns into a political weapon.The episode closes by setting the stage for Trump v. Slaughter, the most significant removal case since the 1930s. For the first time in nearly a century, the Court will confront whether multi-member commissions — the backbone of the modern regulatory state — can still be insulated from presidential will. The stakes reach every corner of federal regulation: finance, monetary policy, labor, consumer protection, energy, and more.Key Concepts: Removal Power | For-Cause Protections | Malfeasance / Neglect / Inefficiency | Myers | Humphrey’s Executor | Morrison v. Olson | Seila Law | Unitary Executive TheoryExamples: Saturday Night Massacre | Nixon & the Fed | FDR vs. Humphrey | Trump–Powell conflict | CFPB | FHFATakeaway: A government can’t function if every tough call costs someone their job. Removal protections aren’t technicalities — they are the guardrails that keep expert judgment from collapsing under political pressure.

After exploring why agencies need power, Gwen and Marc turn to how we keep that power honest. This episode explains why Congress sometimes chooses to bind the president’s hands in advance — creating institutions that can resist political pressure, maintain stability, and preserve public trust.The episode opens with the now-infamous PAC-12 “boat call,” where a conference executive phoned in from a boat to overturn a targeting review. The result? Even well-intentioned interference shattered confidence in the process. Gwen uses that collapse of trust to launch into the core question: Why does Congress build entire agencies designed so the president can’t make that call?Listeners follow the origins of independent agencies from the late 19th century to the creation of the FTC in 1914, using legislative history that reads like a blueprint for credibility: multi-member commissions, bipartisan composition, long staggered terms, and removal protections that prevent retaliation for unpopular decisions. These structural choices weren’t accidental — they were Congress’s way of acknowledging human nature. Power and temptation travel together, and even a well-meaning president will face short-term political incentives that clash with long-term stability.Gwen and Marc walk through concrete examples — the Federal Reserve’s interest-rate decisions, the SEC’s role in policing financial markets, the FTC’s consumer protection mission — showing how independent agencies serve as referees who can’t be fired for making the right but unpopular call. They also situate these agencies in constitutional doctrine, from Humphrey’s Executor to Seila Law, previewing the Supreme Court’s upcoming confrontation with their very existence.Ultimately, the episode reveals independent agencies as democracy’s pre-commitment system: guardrails Congress builds because it knows presidents — like Odysseus — may someday hear the siren song of short-term politics.Key Concepts: Independent Agencies | For-Cause Removal | Multi-Member Commissions | Staggered Terms | Bipartisan Composition | Humphrey’s Executor | Seila Law | Unitary Executive TheoryExamples: PAC-12 replay interference | Federal Reserve | FTC in 1914 | SEC | CPSC | FERC | NLRBTakeaway: Sometimes democracy protects itself by limiting its own future impulses. Independent agencies exist because stability, expertise, and long-term policy require insulation from the political storms of any single presidency.🎧 Listen on Spotify | Apple Podcasts | remediespodcast.com

After learning why agencies need power, Gwen and Marc now explain how they use it. This episode breaks down the Administrative Procedure Act’s notice-and-comment process — the backbone of modern rulemaking — through the Department of Transportation’s debate over emotional-support animals on planes. This episode follows the DOT’s 2020 service-animal rule to show how notice-and-comment rulemaking actually works.Listeners see every stage: publishing a proposal in the Federal Register, inviting and reviewing thousands of comments (including a mass-comment campaign for miniature horses), and crafting a final rule with a detailed preamble explaining the agency’s reasoning. The hosts show why public comments must be substantive, not just popular, and how agencies balance accessibility, safety, and consistency with laws like the ADA.The discussion extends to the backup-camera mandate and the “ossification” problem — how decades of added procedures have slowed rulemaking to a crawl. Still, notice and comment remains the most democratic tool in the administrative state: it forces agencies to justify decisions, consider real-world impacts, and show their work.Key Concepts: Notice and Comment Rulemaking | Administrative Procedure Act | Federal Register | Mass Comment Campaigns | Preamble | Ossification | Public Participation Examples: DOT service-animal rule | Miniature horse debate | Backup camera mandate | Benzene rule timelineTakeaway: Rulemaking may be slow, but it’s democracy in action — transparency and accountability woven into the machinery of expertise.🎧 Listen on Spotify | Apple Podcasts | remediespodcast.com

After 1935, the Supreme Court mostly gave up enforcing the Nondelegation Doctrine — but it didn’t give agencies unlimited power. In this episode, Gwen and Marc use relatable examples — a micromanaging homeowners association and an overzealous parks director — to explain how an “intelligible principle” keeps delegation from turning into dictatorship. From HOA lawn rules to broadband speeds, they show how Congress can give agencies discretion without letting them run wild.They walk through real-world statutes that rely on this idea — from OSHA’s “reasonably necessary and appropriate” safety rules to the FCC’s “public interest, convenience and necessity” standard — and discuss how courts review those limits. The conversation ranges from the Benzene case and generic-drug bioequivalence to broadband definitions that evolve as technology changes.Key Concepts: Intelligible Principle | Delegation Boundaries | OSHA | FCC | SEC | Benzene Case | Generic Drugs | Agency Flexibility Examples: HOA analogy | Youth sports director analogy | EPA air-quality standards | FDA bioequivalence | FCC broadband speedTakeaway: Delegation is inevitable — but guardrails matter. An intelligible principle ensures expertise can flourish without collapsing into favoritism or tyranny.🎧 Listen on Spotify | Apple Podcasts | remediespodcast.com

Journey back 90 years to 1935 - the one and only year the Supreme Court decided that Congress had tried to delegate too much power.If delegation is so useful, why can’t Congress delegate everything? Gwen and Marc explain the Nondelegation Doctrine through analogies to filmmaking and explore how Supreme Court cases—including Schechter Poultry—define the boundary between lawmaking and execution.Gwen and Marc trace the constitutional limits on delegation, from the “sick-chicken case” to today’s administrative realities. They show how the Court balanced principle and practicality, and how agencies like the TSA apply flexible judgment while staying within statutory bounds.Key Concepts: Nondelegation Doctrine | Separation of Powers | Schechter Poultry | Panama Refining | Yakus | Agency AdaptationExamples: Supreme Court cases (1935–1944), TSA 3-1-1 rule, shoe-screening policiesTakeaway: Congress must set the “what”; agencies decide the “how.” Nondelegation guards that line—and modern governance depends on keeping it workable.

Why does Congress hand power to agencies? Gwen and Marc compare delegation to leaving instructions for a babysitter—trust plus judgment. They trace how this practical necessity shaped everything from Hamilton’s Treasury memos to the EPA’s air-quality standards.Gwen and Marc unpack why Congress can’t—and shouldn’t—do it all. Through stories of early Treasury circulars and modern environmental regulation, they show how delegation lets experts turn broad legislative goals into concrete rules that adapt with science and circumstance.Key Concepts: Delegation | Agency Expertise | EPA | Clean Air Act | Quasi-Legislative Power Examples: EPA particulate-matter rules, Hamilton’s 1792 customs lettersTakeaway: Delegation isn’t a flaw—it’s the mechanism that lets democratic government scale and respond to complexity.

Gwen Savitz and Marc Roark start Administrative Remedies by explaining why modern government can't function without agencies. From small-town mayors to the FDA’s milk standards, they show how specialization and scale make the administrative state essential.Agencies make democratic promises real. Using analogies—from small-town government to the FDA’s definition of “milk”—they explain how constitutional hierarchy flows from the Constitution to statutes to regulations, and why the Administrative Procedure Act is the “rules behind the rules.”Key Concepts: Administrative State | Expertise vs Generalists | Hierarchy of Law | APA Examples: FDA food definitions and nutrition labelsTakeaway: Agencies are how Congress turns broad powers into daily governance; they’re the specialists who make democratic goals work in practice.

Administrative Remedies - coming soon.