Tag: Administrative Law Page 1 of 2

by Sydnie Caster*

Although the Supreme Court has not invalidated a private delegation since 1936, debate around the constitutionality of private delegations has persisted among scholars and courts. Circuit courts are split regarding the constitutionality of the private delegation in the Horseracing Integrity and Safety Act (“HISA”). The debate regarding the constitutionality of HISA is rooted in a broader discussion about the legality of private delegations in relation to separation of powers principles. There are two principal theories of separation of powers: functionalism and formalism. The functionalist approach focuses on how government works in practice, weighing the overall balance of power between branches of government. The formalist approach focuses on the text of the Constitution and endorses strict separation of roles for each branch of government. This Contribution argues that courts should adopt a functionalist approach to evaluating private delegations in order to preserve the flexibility and expertise necessary for effective modern governance, while ensuring political accountability and preventing self-interested regulation by private entities.

by Joey Schnide* 

Commodity checkoff boards, or quasi-governmental entities created by statute to research and promote agricultural commodities, are responsible for well-known advertising campaigns like “Got Milk?” and “Beef, it’s what’s for dinner.” Checkoff boards must have all advertisements pre-approved by the United States Department of Agriculture (“USDA”). When the USDA pre-approves commodity checkoff advertisements containing misleading claims, ordinary false-advertising remedies such as the Lanham Act and state torts cannot overcome the barriers to seeking relief imposed by doctrines of sovereign immunity and government speech. This Contribution argues that, to correct this accountability gap, courts should permit review of USDA’s approval decisions under the Administrative Procedure Act (“APA”). Since USDA approvals constitute final agency action and are thus reviewable under § 704 of the APA, producers who have been harmed by false or misleading advertisements should be able to seek judicial orders setting those approvals aside. Recognizing the permissibility of APA review would not unduly expand liability for commodity checkoff boards; rather, it would merely enforce limits Congress has already imposed through statute.

by Olivia Baldwin*

In February of 2025, President Trump declared a national emergency under the International Emergency Economic Powers Act (“IEEPA”) in order to impose sweeping tariffs on major U.S. trading partners. Exercising such expansive economic authority on the basis of vague statutory language raises serious separation of powers concerns under the nondelegation doctrine. Although the Supreme Court has invalidated statutes on nondelegation grounds only twice, the current Court has signaled renewed interest in enforcing the doctrine. This resurgence raises a critical question: Should the nondelegation canon apply less rigorously when Congress delegates power to the President in matters of foreign affairs? The asserted “foreign affairs” exception, based largely on the Court’s opinion in U.S. v. Curtiss-Wright Exp. Corp. has long insulated such legislative delegations from meaningful scrutiny. However, a foreign affairs exception has no basis in the text of the Constitution and is inappropriate given modern convergence between foreign and domestic matters. This Contribution argues that the nondelegation doctrine should apply with equal force in both foreign and domestic contexts, and that the proper analysis is whether the President possesses independent power over the delegated matter. Using IEEPA as a focal point, this Contribution demonstrates that “foreign affairs” provide no coherent or constitutionally grounded justification for relaxing the nondelegation doctrine.

by Danielle Resheff*

The Eighth Circuit’s recent decision in Zimmer Radio of Mid-Missouri Inc. v. FCC provides a crucial opportunity to advocate for a nuanced and targeted approach to media regulation—one that rejects outdated restrictions like the Federal Communications Commission’s (“FCC”) “Top-Four Prohibition” without embracing wholesale abandonment of structural safeguards. While the Eighth Circuit correctly identified that the FCC’s rules fail to account for the competitive realities of modern media—such as multicast streaming—this finding should not be misconstrued as a mandate for complete deregulation of television ownership limits—such as the national audience cap. This Contribution argues that abandoning the long-standing 39 percent national audience cap, a rule designed to prevent excessive media consolidation and protect localism, would be a dangerous overcorrection. Instead of a deregulatory race to the bottom, the Zimmer Radio decision compels a more sophisticated path: one that modernizes the rules to reflect technological advancements, like multicast streaming, while steadfastly retaining foundational regulations that ensure the continued viability of diverse, local new broadcasting operations. This approach acknowledges that a healthy media ecosystem requires both the flexibility to innovate and the structural limitations necessary to protect the public interest.

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.

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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