N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: Administrative Law

From Scarcity to Surplus: Rethinking Red Lion in the Modern Era

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On November 24, 2025

In Contributions

by Jessica Ford* 

The First Amendment protects the freedom of speech and expression of both individual persons and the media. Generally, the Supreme Court analyzes First Amendment challenges to governmental restrictions on the content of speech by applying heightened scrutiny as the mechanism of constitutional review. In Red Lion Broadcasting Co. v. Federal Communications Commission, however, the Court held that some content-based restrictions on speech are acceptable in broadcasting because of the limited availability of spectrum space, or the frequencies in the electromagnetic spectrum used to transmit audio and audiovisual content. This “scarcity rationale” has subjected broadcasters to unique treatment under the First Amendment for decades, but dramatic changes in technology and media consumption—most notably the rise of multicast streaming, cable television, and digital streaming platforms—call its modern-day validity into question. This Contribution reexamines the foundations of Red Lion and argues that the Court’s 1969 reasoning cannot be squared with today’s vastly expanded and distinct media environment.

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The Federal Trade Commission’s Generalized Rulemaking Authority

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On September 29, 2025

In Contributions

by Lisa Tarasyuk*

The Federal Trade Commission is vested with the power to make rules with legislative effect when regulating unfair methods of competition. That includes the power to issue a Non-Compete Clause Rule, a rule that voids non-compete clauses nationally. The Commission’s authority to issue such a rule is conveyed by the plain text of 15 U.S.C. §§ 45(a)(2) and 46(g) and confirmed by the Federal Trade Commission Act’s scheme and subsequent amendments. The rule does not offend the Major Questions Doctrine because the authorizing provisions are clear, as is Congress’s intent for the Commission to intervene in trade. The Commission is thus vested with the authority to issue substantive rules when regulating unfair methods of competition, including through the Non-Compete Clause Rule.

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Too JUUL for School: Evaluating the FDA’s Regulation of Flavored Electronic Nicotine Delivery Systems

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On March 20, 2025

In Contributions

by Aster O’Leary*

In response to what has been dubbed a “youth vaping epidemic,” the Food and Drug Administration (“FDA”) has recently cracked down on non-tobacco-flavored Electronic Nicotine Delivery Systems (“ENDS”), which middle and high school students prefer over tobacco-flavored ENDS products. Recognizing that the ENDS industry is relatively new and constantly evolving, the FDA declined to mandate the inclusion of certain types of scientific studies in its guidance to the industry. However, many flavored ENDS manufacturers feel that the FDA pulled a “surprise switcheroo” when denying many of their Premarket Tobacco Product Applications (“PMTA”).1 In the denials, the FDA explained that the applications lacked long-term studies and/or controlled investigations that demonstrated that the flavored products were “appropriate for the protection of the public health.”2 Additionally, the manufacturers complained that for many of their applications, the FDA refused to consult their marketing plans, which the FDA had previously emphasized were of tantamount importance. This Contribution argues that the FDA did not violate the Administrative Procedure Act (“APA”) by modifying its approach to PMTA review. It first demonstrates denying PMTAs because they lacked long-term studies is permitted under the FDA’s flexible approach to weighing ENDS’ risks and benefits to society as a whole. It then argues that the FDA’s refusal to consult manufacturers’ marketing plans, while arbitrary and capricious, is in most cases harmless error. It concludes by questioning whether the FDA should be tasked with regulating an inherently harmful category of products in the first place.

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Fishers Meet Fischer: How Fischer May Help Loper Bright Weaken the Administrative State

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On October 29, 2024

In Contributions

by Joshua Averbach*

On June 28, 2024, the United States Supreme Court decided two controversial, seemingly unrelated cases: Fischer v. United States and Loper Bright Enterprises v. Raimondo. Fischer narrowly interprets a federal criminal obstruction statute, vacating the convictions of some January 6 insurrectionists and weakening the related prosecution of Donald Trump. Loper Bright overturned Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., a landmark case requiring courts to defer to reasonable agency interpretations of ambiguous statutes. This Contribution will discuss how Loper Bright weakens the administrative state by expanding courts’ ability to strike down agency action. It argues that Fischer stands for a narrow brand of statutory interpretation that may bolster the regulatory challenges made possible by Loper Bright.

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Filtering Out the Noise: Does the APA Prevent Use of AI/ML tools in Agency Review of Public Comment?

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On September 17, 2024

In Contributions

by Emmett Tabor*

At times, administrative agencies encounter an overwhelming volume of public comments during the rulemaking process. The review of these comments, as mandated by the Administrative Procedure Act (APA), can delay the implementation of regulations and place a significant burden on resource-scarce agencies. The integration of Artificial Intelligence (AI) and Machine Learning (ML) tools into the comment review process offers a promising solution to expedite notice-and-comment rulemaking. At the same time, the use of these “black box” solutions may trigger legal challenges for potentially violating the procedural requirements of the APA. This Contribution explores three anticipated legal considerations for agency use of AI/ML tools in the review of public comment: (1) disclosure requirements under APA section 553(b); (2) obligations to “consider” public comments under APA section 553(c); and (3) the rule of prejudicial error under APA section 706. Despite these concerns, this Contribution argues that incorporation of AI/ML tools into the agency comment review process is compatible with the APA.

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Fitting Administrative Law Judges into Appointments Clause Jurisprudence (and Determining the Proper Forum to Do So)

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On October 14, 2016

In Contributions

by Jordan Gary*

Are Administrative Law Judges (ALJs) inferior officers of the United States under the Appointments Clause of the Constitution, rendering the Securities and Exchange Commission’s (SEC) procedure for appointing ALJs unconstitutional? Procedurally, how could a respondent in an SEC administrative action make such a challenge? Jordan Gary (’17) explores this question, as presented in the 2016 Kaufman Moot Court Competition at Fordham Law School. Supreme Court doctrine places a demanding burden on plaintiffs seeking to circumvent SEC administrative processes. Additionally, the SEC is neither bound by, nor required to defer to, initial ALJ determinations in reaching its ultimate determination within a proceeding. As a result, this Contribution argues that, as a matter of both law and policy, Article III district courts should not have subject-matter jurisdiction over constitutional claims challenging SEC administrative procedure, and that SEC ALJs do not constitute inferior officers under the Appointments Clause of the Constitution.

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So You Think You’re a Citizen? How a United States Citizen Can Be Stripped of His Citizenship

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On September 1, 2016

In Contributions

by Sonya Chung and Zi Lin*

Do passports and Consular Reports of Birth Abroad constitute conclusive proof of U.S. citizenship such that the State Department’s revocation of these documents is not impermissibly retroactive? Sonya Chung (’17) and Zi Lin (’17) examine this question, based on their experience as writers of the problem for the New York University School of Law 2016 Immigration Law Competition. Their Contribution discusses the state of the law surrounding passports and CRBAs as evidence of citizenship and their revocability. The Contribution argues that courts should allow individuals to use these documents as conclusive proof of citizenship and that the State Department’s power to correct its own errors should be circumscribed carefully in cases where there has been extended reliance on citizenship rights.

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